Examination of Witnesses (Questions 500
- 519)
WEDNESDAY 7 JULY 2004
MS SANDRA
CALDWELL AND
MS ELIZABETH
GYNGELL
Q500 Mr Cran: Could you be clear
about why that is?
Ms Caldwell: Because in a sense
we have built up this relationship and they recognise that we
have a genuine and a proper interest in investigating those incidents,
to investigate them with them, for us to learn the lessons as
well as for them to learn the lessons to ensure that information
can be fed back into ensuring the right procedures are in place
or getting the right understanding from the command of the importance
of applying proper procedures.
Q501 Mr Cran: Fine. I have got us
to where at least I want us to be. I think the question then must
be: do you consider that to be adequate? I would myself worry
about a situation where the Armed Forces were not obliged but
merely through good practice consulted you. Until somebody tells
me why it should not be, I should like to see this on a statutory
basis.
Ms Caldwell: I shall widen it
even further and then I will answer your question. I said that
the Health and Safety at Work Act applies to all MoD activities,
but they are a Crown body and they have Crown immunity. As a consequence,
we are unable legally to use our usual enforcement powers. That
is in relation to the Act. What we have built up over the years
are equivalent administrative arrangements to deal with that.
I can explain the equivalents. Even in the Act, although we have
the responsibility and we carry out our regulatory work, Crown
immunity disapplies our enforcement ability there. In respect
of the reporting of accidents, again there is that difficulty.
Both the Health and Safety Commission and the Health and Safety
Executive have publicly said that we would support the removal
of Crown immunity and it would go not only for the Act. Also we
are going to be reviewing the reporting regulations. We would
start from the premise that those regulations should apply to
all.
Q502 Mike Gapes: On the question
of Crown immunity, it is not just the Ministry of Defence which
has Crown immunity. This place has Crown immunity.
Ms Caldwell: I know. As a junior
inspector, I found that out when I wanted to stop some activity
here.
Q503 Mike Gapes: We will not talk
about water supplies a few years ago. Is your point about Crown
immunity a general point or are you specifically referring to
the MoD?
Ms Caldwell: It is a general point.
It has been repealed in certain areas with respect to health and
safety, but not generally.
Q504 Mr Hancock: Have they ever in
your experience used Crown immunity to prevent you having information
you have asked for?
Ms Caldwell: In my experience,
no.
Q505 Mike Gapes: How long have you
been doing this job?
Ms Caldwell: That was what I was
going to come on to say. I took up this post in December, so that
is a short time frame, but in briefing for this afternoon, nobody
brought that issue up with me.
Q506 Mr Hancock: Did they raise with
you the issue of Crown immunity and say this was a good opportunity
for you to say that Crown immunity is a problem? Do your colleagues
recognise it as an impediment against them doing their job properly?
Ms Caldwell: Personally, I think
it should be removed, because there should be a level playing
field. As an enforcer, it is unfortunate that we do not have a
level playing field, that we have certain powers which we exert
when we are inspecting private sector work and we do not have
the same level playing field for the public sector. I personally
and the Commission and the Executive would hold that particular
view.
Q507 Mr Cran: May I just ask a tiny
question, so I get this into my head? The following proposition
would be correct, would it not? The MoD do indeed try to bend
over backwards to be co-operative with you but at the end of the
day we cannot any of us be sure that you are indeed consulted
on 100% of the occasions where anybody else without Crown immunity
would have to. That is correct, is it not?
Ms Caldwell: That is correct.
I would say that the commitment at senior level is there.
Q508 Mr Cran: It is a question of
what happens below that, is it not?
Ms Caldwell: Yes and that is always
the same in any work environment. As you say, we have the particular
situation then of Crown immunity.
Q509 Mr Cran: We have got there.
That is fine. You said in answer to the Chairman that visits to
training establishments are reactive—I took the word down.
Do you think that is adequate? I know perfectly well that you,
like everybody else, have resource constraints and all the rest
of it. Talk me through why, if you believe it to be so, that is
adequate. I like to see visits which nobody expects and you just
zoom in to see what is really happening. Do I have this all wrong?
Ms Caldwell: No. Let me deal with
that, because that is a slightly sideways point. In most work
environments, unless we are visiting to investigate accidents
and incidents, our usual approach is to call uninvited so to speak,
unless we are doing something like an audit which we have to set
up and which requires a lot of documentation and talking to the
management. Obviously, if you want to investigate an accident,
you want to ensure that the right people are there. I have almost
lost myself in that eloquent reply.
Q510 Mr Cran: It was very eloquent.
The point of my question was that as I understood it, the visits
to training establishments are reactive. I asked: is that adequate?
Ms Caldwell: I think you would
expect that I could always do more if I had more resources. At
the moment, our priorities are set by the Commission and I have
to cut my coat according to the resources that I have. With respect
to the MoD we do have the central approach and the reactive approach.
A degree of proactivity would also be sensible.
Q511 Mr Cran: I just have to know
what all that means. Are you agreeing with the proposition that
it is not adequate and therefore you would like to be free to
go in unannounced when you felt you wanted to?
Ms Caldwell: I would put it this
way. Under the Health and Safety at Work Act, the responsibility
for adequate arrangements lies with the duty holder, not with
HSE. Our responsibility is to ensure that there is the commitment,
that the procedures are in place and to police them. At the moment
we do it on a reactive basis. In other areas we do it on a proactive
basis because they are a priority. If we had more resources, we
would be able to do more proactive work.
Q512 Mr Cran: I do understand that,
but I am trying to get you to give me a clear answer to my question.
Do you think it would be desirable, if you had the resources at
hand, to be able to make unannounced visits to Army establishments?
Ms Caldwell: More resources would
enable us to carry out audit activities.
Q513 Mr Cran: That I understand.
Ms Caldwell: I do not think we
would make unannounced visits to the MoD just because of the security
aspects. It is a little different. I am not trying to be clever
here; we do have the arrangement that we notify so that they can
check that we are who we are.
Mr Cran: I understand.
Q514 Mike Gapes: May I take it a
step further? You referred to the regulations which give exemptions
and some of them relate to diseases and other matters. Could there
be a case for these exemptions applying in general to MoD establishments,
but not to the initial training establishments which are a rather
special place within the MoD? Is it necessary to have exemptions
for the initial training establishments in the Armed Forces?
Ms Caldwell: I think with law,
if there is a will, there is always a way, is there not? To be
fair to the MoD, I am not sure that they are necessarily comfortable
with the particular exemption on the reporting of incidents, just
by the very nature of the type of arrangements they have in place.
Some of that is more historical than an actual concern. On the
reporting aspects, when we revise the regulations, that would
be an area where we would have discussions and I could see that
developing. The Act does apply to initial training establishments
and our responsibility for scrutinising or regulating them applies.
So it is not disapplied from initial training establishments.
The only thing which is not applied across the piece is the reporting
issue.
Q515 Mike Gapes: Is that not the
essential point, that under Regulation 10(3) of the Reporting
of Injuries, Diseases and Dangerous Occurrences Regulations 1995
reporting requirements for accidents, deaths and diseases do not
apply to members of the Armed Forces on duty?
Ms Caldwell: I would not like
us to try to do it piecemeal; I should like the lot to go.
Q516 Mike Gapes: Is there not an
argument that Armed Forces on duty in combat operations are different
from Armed Forces on duty in initial training establishments?
Would there not be a case at least for you being able to have
the requirements not disapplied in the initial training establishments?
Ms Caldwell: You could do that;
there is no reason why you could not do that. Equally, at the
moment there is probably no reason why, when the regulations come
up for revision, you could not start from the basis that there
is no exemption at all.
Mike Gapes: Thank you; that is helpful.
Mr Cran: A nice seed sown there.
Q517 Mr Jones: We have been talking
about initial training establishments and you have a situation
where young people are in an environment. What main differences
do you think there are or have you come across between a military
establishment and a work place with 17- or 18-year-olds? Do you
think additional support could be given to those 17- or 18-year-olds
and are there things happening in private industry which could
be cut across to training establishments?
Ms Caldwell: In all aspects of
training or do you have a particular area in mind?
Q518 Mr Jones: Phase 1 training for
example. You have a lot of young people in a concentrated area
at once. Are there health and safety issues there which you think
need more regulation as opposed to 17- or 18-year-olds working
on a shopfloor or a factory?
Ms Caldwell: I would start from
the basis that Regulation 19 of the management regulations does
require all employers to look at the vulnerability of young people
irrespective of the workplace they are in. A lot of that is that
there is a recognition that they do not have the same life experience
as established workers, they may be physically or psychologically
still immature and you have to be able to match the training to
their abilities. Then, in looking at initial training establishments,
there probably are some other factors which one would look at
in the sense that obviously it is a very disciplined environment,
probably far more disciplined than other workplaces. That could
be a good thing as well as a bad thing. I am not saying good or
bad, but it is a difference. One of the other issues is that some
of the training they are undergoing is by nature more hazardous,
but that is the job they are going to be doing and they need to
be trained in that activity, as firemen need to be trained in
dealing with fires before they do it for real. What I would be
saying is that what needs to be done is to look at those particular
circumstances to see whether anything over and above what would
be the norm elsewhere needs to be applied.
Ms Gyngell: I would agree. The
other aspect is that they are very often removed from their family
support system. It is not only that condition, because they might
have gone to boarding school or wherever, but it is unusual for
quite a lot of the people, as I understand it. So one would be
looking for that to be added to the things you would want to pay
particular attention to.
Ms Caldwell: They will also perhaps
not yet have developed social support systems that you get in
work places if you are an established worker.
Q519 Mr Cran: I should be quite interested
to know whether you have any role whatsoever. I would not be surprised
to hear the word exemption come out very shortly. Do you have
any role in terms of advising the MoD, the Armed Services, or
auditing the Armed Services, in terms of things such as bullying,
work related violence or excessive stress?
Ms Caldwell: May I say what we
are doing? We have looked at the final report of Surrey policy
into the Deepcut incidents and there we are picking up that stress
and bullying may be issues. We have done a number of things. We
have spoken to the MoD and asked them for all their documentation
on stress and bullying and we are setting up meetings to discuss
this with them, really to see whether we can help improve the
situation and determine whether they are looking at the right
things. We have also approached them with the Adult Learning Inspectorate,
whom Ministers have asked to look at MoD's training. We are looking
to see whether we can work with them and co-operate in looking
at some of the areas; really to see whether we can join forces
to see whether there are areas it would be sensible for us to
look at. We have also informed the coroner that we have an interest
in areas of stress and bullying, if that is an issue. We have
also alerted our field force that, when we do get reports of incidents
which appear at first to be a suicide, they should ask questions
of the police to see whether there are any issues associated with
stress and bullying. We did that at a recent death in June.
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