Examination of Witnesses (Questions 150-159)
JONATHAN REES
AND COLIN
DOUGLAS
10 JANUARY 2006
Chairman: Mr Rees, Mr Douglas, thank
you for joining us this afternoon. You have already sent us some
helpful material in the form of a memorandum to demonstrate that
you are not the villains of the piece either, and we would like
to ask you some questions, if we may.
Q150 Julie Morgan: Good afternoon. You
say in your evidence that there are a number of reasons why risk
averse decisions are made and activities are not carried out,
services are not provided, and it is not just the perception of
a compensation culture, but, as you say, health and safety and
other issues cause these sorts of decisions to be made. Do you
think that the risk of prosecution leads to greater risk aversion
in public bodies than the fear of litigation?
Jonathan Rees: We have looked
at that, and, of course, as always, there are two sides to the
question. The risk of prosecution is very important and I would
say that, would I not. But actually our key role in the HSE is
to prevent accidents, and a considerable number of accidents and
ill-health or fatalities unfortunately still occur, so we do wish
people to realise that there is a risk of prosecution where they
do things wrong. Equally, what we do not want to happen is that
where people have taken the appropriate measures to manage the
risk, they should not fear that they can be prosecuted. If we
take an area like education, which you may want to come on to,
we have actually prosecuted very, very few teachers—three,
in practice, over the last five years—but I accept entirely
that there is a fear among teachers—and I know lots of teachers—that
they could be prosecuted. I think that is a rather long-winded
way of answering the question, which is, yes, I do think that
there is a fear of prosecution as well as the fear that somebody
might be sued amongst the voluntary sector, local authorities
and other parts of public sector who are duty holders.
Q151 Julie Morgan: You say you have
prosecuted three. How many have you investigated with a view to
possible prosecution?
Jonathan Rees: By and large not
a great number more. I do not have those figures. I can give you
them, but broadly of the people we investigate for a serious incident
and then prosecute, if you look at the surveys, we actually have
quite a high success rate.
Q152 Julie Morgan: Do you think that
a lot of public bodies and other organisations are doing risk
assessment in a way that they did not do before, and do you think
that sometimes they are being overly cautious in doing risk assessments
that may not be necessary?
Jonathan Rees: I think the short
answer is, yes. We would say this, but risk assessment is not
meant to be a particularly complicated process. When we have talked
at events, and you will have seen them too, of the professor who
had to fill in a 69-page risk assessment before he went on a field
visit, that is ridiculous, and we have said it is ridiculous,
but there is no doubt that that exists, and one of the issues
that we are trying to get at is why does that exist? What is it
that actually caused a university to require someone to fill in
a 69-page risk assessment before they went on a field trip? We
do not know, and that is part of the evidence that we are trying
to collect. I suspect it is for a whole series of reasons, and
we have commissioned Greenstreet Berman to actually do a bit of
research into those instances. What we also do not know is how
many of those instances occur. I think that they are well reported,
and whenever we do come across them we do try and look into them
to see if there is any evidence behind them?
Colin Douglas: It is worth saying
that the most popular publication by a long way that we produce
is a short leaflet entitled "Five Steps to Risk Assessment",
which emphasises throughout that we believe that risk assessments
need to be proportionate, they need to focus only on the more
significant risks and that we are not encouraging the creation
of a huge paper mountain here. We are looking actually to further
develop that leaflet to make even clearer the point that we are
not encouraging risk aversion, we are encouraging sensible risk
management, but we do recognise that that message does not always
get across.
Q153 Julie Morgan: Are there any
particular sectors that it particularly does not get across to?
Colin Douglas: I think this is
an issue that crops up across a range of sectors. There are some
sectors where the urban myths run around the network and the grapevine
apparently at a greater rate. So there are some real issues within
education, not least because some of the urban myths within education
grab media attention and so they feed themselves through that
fuel, they also feed themselves through the accessibility of that
network. We go to some great lengths, as does DfES, to try to
calm those myths in terms of putting things into clearer context,
but this is an issue that we have identified as being a problem
across a range of sectors.
Q154 David Howarth: Can I suggest
to you that from one of your answers you might unconsciously be
promoting risk aversion. You said that your job was to prevent
accidents. Can I suggest that might be part of the problem, because
a different way of putting your job is to stop people taking unreasonable
risks that might cause accidents, but, of course, at some points
there will be people who take a reasonable risk, a bad thing happens,
but from your point of view that should be of no interest; but
if you define your job as preventing accidents, are you not going
to be always raising the bar, because every time an accident happens
you will see that as somehow a matter for regret that should have
been stopped even if people acted reasonably.
Jonathan Rees: I think it is a
fair point. I suppose I describe it in that way because that is
the public service agreement that the Treasury has set us, which
is to reduce the number of accidents, reduce the incidence of
ill-health and reduce days lost. But I accept entirely the thrust
behind it that what we are about is promoting sensible risk management,
and I think that we as an organisation accept that accidents
will always occur. At some point, and I do not think we are quite
there yet, we will enter the period where all risks are sensibly
managed. But, as you will be well aware, last year when we published
our statistics there were still 220 people killed, 150,000 serious
injuries and accidents that occur in the work place and two million
people suffer from work related ill-health so it remains important
for us to try and reduce that.
Q155 David Howarth: Is there not
a serious tension here between a risk management culture, which
you might think was a negligence or reasonable behaviour approach,
and an absolute target on a number of accidents, which is a strict
liability process that says that the test is how many accidents
there are rather than did people act reasonably?
Jonathan Rees: I think at the
global level, and if you take a sector like agriculture, we know
that there will continue to be a certain number of fatalities.
That is tragic but it will happen, despite the fact that we have
tried to educate people into assessing what all the risks are
and managing them carefully. Our job is to try to make sure that
all, as we call them, duty holders—people who operate a
business—understand the risks that they are running, and
that will vary across different bits of the economy. I think it
is also worth underlining that we regulate from nuclear power
stations to petrochemical plants to very small offices and premises.
From an operational point of view we want to concentrate our resources
on those areas where the risks are greatest, which will predominantly
be areas like construction, or where the risks of something going
wrong is catastrophic, which is nuclear power stations; so we
are not interested, by and large, in worrying about hanging baskets
or some of the other areas which undeniably do occur in the press.
Colin Douglas: Whilst we are unapologetic
about having an objective of reducing the numbers of accidents,
the 220 odd fatalities that happened last year, 150 odd thousand
serious injuries, that is not at all inconsistent with us making
clear that we are not about a zero risk society where no accidents
happen. But we come across too many very avoidable accidents that
result in serious harm or death which our inspectors investigate
where they have to explain to the relatives of those people who
have died why they died. It is entirely consistent with an approach
to sensible risk management that you focus on the major causes
of harm, and the purpose in doing that is in order to reduce the
risk of serious injury rather than generating a huge mountain
of paper work that focuses on trivial risks. This proliferation
in risk aversion has done great harm, we believe, to our objective
of focusing on the main risks within the health and safety system.
David Howarth: But should not the target
be in terms of instances of unreasonable behaviour, not in terms
of results? There are two entirely different approaches, and could
it not be argued that risk aversion has been caused by you by
having an absolute target in terms of outcomes rather than a target
in terms of behaviour?
Q156 Chairman: Putting it another
way, it would not have been possible to prove that you could fly
and develop something called an aeroplane if the target had been
to prevent accident rather than to manage the risk involved?
Jonathan Rees: I understand the
point you are making. I would simply say that by focusing on the
outcome target we can measure whether we are making a difference,
and actually that is quite important for us because we actually
have in the last five years reduced the number of ill-health cases
and reduced days lost. Unfortunately we have not reduced the number
of major accidents. We have reduced the number of people killed
at work. You can couch the targets in different ways. I personally
think that an outcome based target is a pretty good thing for
an organisation to have. I would say that it is not only us that
will help achieve it, and I think that then perhaps helps with
the link. The only way that accidents will be reduced is if everybody
in the system actually manages risk sensibly.[2]
Q157 Mr Khabra: The Health and Safety
Executive's view is that the perception of compensation culture
is not the only reason that unnecessary risk aversion decisions
are made in relation to health and safety management. Our view
is that a number of other factors play their part. In your opinion
what more does the Health and Safety Executive have to do to educate
people about proper risk management and about unnecessary risk
aversion?
Jonathan Rees: I think the short
answer is that we do need to make sure that the advice and guidance
that we give to people is not encouraging unnecessary risk aversion.
Let me give you an example (which may or may not come up)—swimming
pools. We produce guidance on swimming pools which is designed
to give best practice for those who operate swimming pools, by
and large local authorities. The aim of that guidance is to prevent
something like 800 or 900 operators of swimming pools having to
work out what their own guidance could be as to the sorts of things
that they ought to look for, but the very fact that we produce
guidance, which I fear is quite thick and voluminous, you can
look at it on the website, then gets people to think, "Aha,
maybe there is a risk around swimming pools", and that is
one of the issues that we are concerned about in terms of are
we sending the right signals in the guidance which we are trying
to give in terms of being helpful? Part of the risk debate that
the Minister, Lord Hunt, launched last July was to try and develop
a debate about how can we give the right signals to people who
are operating—we call them duty holders, but businesses,
voluntary groups, and so on—and I am sure you will hear
from the next witnesses that there is clearly a perception which
does not always reflect the reality.
Q158 Mr Khabra: What steps would
you suggest we take that excessive risk averse decisions are not
made?
Jonathan Rees: Well, part of that
is, I think, we need to understand better why seemingly stupid
decisions, I can put it like that, can be made. The Financial
Times rang me up a few months ago and said, "Why has
a school banned egg boxes because of the risk of salmonella?"
We said, "There is no risk of salmonella from egg boxes."
They tried to find out why the school had done it, and they still
managed to get a two-page spread on it, but essentially they did
not actually work out why the decision had been taken. Part of
the reason was that the headmaster thought it was the local education
authority, the local education authority thought it was some guidance
he read, we said that there was no guidance, it might have been
the insurance or what have you. We are now doing some analysis
to try to understand what it is that leads to these apparently
perverse decisions, which is a rather long way of saying nobody
really knows why people take these odd decisions; but I suspect
that we and other parties all share some of the blame.
Q159 James Brokenshire: I just want
to follow on from that point, because they say in politics that
perception is reality. I think it can also be said equally in
this area, and the fact that there is this perceived risk that
means that people behave in a particular way. In part that may
well be the fact that people think to themselves, "If I get
this wrong I could go to jail", and that therefore if you
are looking at a voluntary organisation trying to promote the
public good by, for example, providing facilities for young people
to go hill-walking or to do pursuits that have an inherent risk
element to them, as an individual you will probably say, "I
do not think that is really for me. I would love to do it, but
because of the risk that I might go to jail, or the perceived
risk that I might go to jail, I am not prepared to put my family,
my own livelihood on the line as a consequence of that."
Do you feel that you have positive duty to set out very clearly
what your sanctions are, what the processes are, to give some
reassurance, because clearly there is a wider benefit for the
community that needs to be addressed that is in some ways being
stopped as a consequence of the fear that people might ultimately
go to jail.
Jonathan Rees: The short answer
is, yes, and, if I take your example, people who go on field trips
undeniably—teachers and others—are put off for the
fear of prosecution. There was an example about three years ago
where we did prosecute someone when a child was killed, and as
a parent I would expect us to prosecute someone because the person
who organised that trip was in flagrant breach of all the best
practice guidelines and in this particular case they actually
ignored the advice of other teachers who were on the spot. That
said, those are exceptional cases, and your point is that we need
to make absolutely clear that those are exceptional cases and
that the vast majority of trips, school trips and other sorts
of activity, pass off perfectly safely, and that is one of the
messages we have been trying to get across through the sensible
risk debate.
Colin Douglas: There was the tragic
potholing death a few months ago of a school pupil. Our response
to that as the regulator of health and safety was to issue a statement
making clear that we believe that school trips are an important
part of pupils learning about risk and coping with risk, encouraging
schools to not be discouraged from organising school trips and
pointing them towards practical guidance on our website in order
to help them to manage those risks. We agree with you, we think
there is a risk of schools and others being discouraged from undertaking
such vital activity and we would be keen to work with others to
encourage them not to be discouraged, but your point about making
our processes transparent—we do wish to be as transparent
as possible,—it is one of what we see as the key principles
of good regulation—but there is also a risk in transparency
that the more we are communicating what our processes are in order
to be transparent we are perceived, as the regulator, as waving
a threat at people rather than giving reassurance. We need to
take action, we absolutely accept, but given who we are, we also
want to encourage others to take action so that the message about
avoiding risk aversion coming from people other than the regulator
can actually play more powerfully than sometimes it can when we
communicate that message.
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