Select Committee on Constitutional Affairs Minutes of Evidence


Examination of Witnesses (Questions 160-174)

JONATHAN REES AND COLIN DOUGLAS

10 JANUARY 2006

  Q160  James Brokenshire: I was interested in one of the points you made there in terms of the tragic accident where you felt it was your duty to prosecute. Would you say there was any mind-set that if there is a serious incident you feel you are duty bound to take some sort of formal action and whether that sways your perception of the risk because obviously that could contribute to the perception that "if there is a risk of an accident taking place you will prosecute therefore I cannot put myself in that position"?

  Jonathan Rees: To be clear, where it is a fatality it is the CPS that prosecute but we obviously work very closely with them. We clearly do not prosecute in all fatalities. It depends on the circumstances and we mention in our evidence something called the Enforcement Policy Statement, but broadly speaking we would only prosecute where there seemed to be wilful or flagrant disregard for sensible risk management. One of the things that we do need to balance is not only did the duty holder actually not take due care and attention, not speaking as a lawyer here, but also was there a public good in what they were doing. You may or may not ask me about clause 1 to comment in a sense, but I think the general thrust that you do have to balance these considerations out is right.

  Q161  James Brokenshire: One final point on this issue: would you accept that there is a difference in terms of the ability of a statutory body to respond to this level of detail of regulation and assessment as compared to voluntary organisations that may not be fully equipped and supported and have all of the technical know-how to be able to get to grips with the volume of regulation, the depth of regulation or the guidance or the information to be able to cope with it, and from a voluntary organisation's perspective you might say it is too much like hard work?

  Jonathan Rees: I think I would look more in terms of the size than the nature of organisation but I accept entirely the point that we should not expect small organisations, unless they are really engaged in very hazardous activities, to do the same sort of risk assessment, and indeed we do not, so organisations which employ less than five people do not have to record risk assessments. We are going to look at those issues as to whether that threshold is right. Equally, if you are talking about the voluntary sector it is right that where they are small (and some voluntary organisations are clearly big, for example, social housing) I think it is much more to do with the size than the nature of the organisation, but the thrust I agree with what you said.

  Q162  James Brokenshire: You talked about research and the investigations that you are doing on risk management. To what extent are you working in conjunction with other governmental departments? From what you have said it sounds as though it is almost inextricably linked in terms of the remit that you have been given as an organisation. If so, how do you intend to link your research with research that maybe being commissioned by other governmental bodies to come up with a more formulated view?

  Jonathan Rees: We are working very closely, as I am sure you will hear in a couple of weeks' time, with the Department of Constitutional Affairs. We are part and our representative who is Phillip Hunt is part of the ministerial steering group that has been set up. We took an active part in the events that took place in the middle of November and we have shared, as it were, the research remit. We are also working with some of the other people like CABE who are interested in the built environment to share our research and we have also done quite a lot of work with local government and the LGA because I think we all accept that we need to understand better why it is that what looked from the outside sometimes to be rather odd decisions are taken. Once we understood that we can then see whether indeed it is all about guidance, whether it is all about insurance, whether it is all about consultants perhaps giving them over-cautious advice. I suspect it is a mixture of all of those but we do not necessarily know. So we will be looking at the stories of why did the council ban a hanging basket and what caused that and what was the decision tree that got them to that position.

  Colin Douglas: We are also working with the Home Office and with Volunteering England on a range of research activity that works very closely with the thrust of our research, so it is both sharing and co-ordinating research activity in this area.

  Q163  Mr Khabra: What support are you able to give to voluntary bodies which may not have the ability of larger services at the same level which a professional body can provide but which have a role to play in society?

  Jonathan Rees: In terms of support I think the key area which we are looking at is the advice we give on what they have to do to comply with regulatory guidelines, so if I give you the example of noise. New noise regulations came into force last October. Our traditional approach (and as a relative newcomer to HSE I can say this) would have been to produce a 100-page guidance which would have been read with great interest by noise experts. What we actually produced was a two-page guidance which showed small organisations what they had to do. So I think in terms of advice we can help. Obviously in terms of direct handling then we do not have the resource to do that

  Q164  Mr Khabra: You will not discourage them from getting involved?

  Jonathan Rees: No.

  Colin Douglas: Quite the reverse. As I say, part of the thrust of the Sensible Risk initiative that we are very much behind is encouraging organisations that are engaged in very valuable undertakings to continue to do so and to do so by applying sensible and proportionate measures and not by drowning themselves in paperwork.

  Q165  Jessica Morden: How often would you prosecute the voluntary organisations? Just give me an idea of how frequent it is.

  Jonathan Rees: I can write to you on that. I think the  answer is very, very rarely. In terms of our prosecutions we get other pressures that we do not prosecute people often enough. Very, very rare occasions, a handful.

  Q166  Chairman: You can drop us a note if you like.

  Jonathan Rees: We will drop you a note.[3] We did not look at volunteering, we looked at education and the answer on education was it was a handful of individual teachers and schools.


  Q167 Chairman: The reverse argument you have to be conscious of is if you are a parent of a child who is injured it is immaterial to you as to whether the organisation was large or small, as to whether it was voluntary or public sector; it is whether the risks had been properly looked at.

  Jonathan Rees: I am sure you will have your own evidence on this. I think in many cases people are less worried about prosecution in those events and much more concerned to ensure that the lessons are learned and it does not happen again. That is one of the things that we obviously take into account.

  Q168  James Brokenshire: Just one final point. I heard you make reference to the salmonella example. I heard another one this week which was fruit with stones being banned from schools, which I thought was an interesting one, for fear, I presume, that the pupils might swallow the stones so oranges were being banned because of dangerous pips, from  what I can understand. Clearly there is an educational issue on this. Do you perceive that as being addressed by clearer guidance or do you think that there needs to be a more proactive approach by the HSE to go out and really explain this whole area further? What practically are going to be the solutions to trying to avoid these types of somewhat bizarre instances?

  Jonathan Rees: I think that was the Scottish incident the one you are referring to, which is immaterial, but the question is what we try and do when these stories come up is to write to the newspapers to make it perfectly clear what the position is. We are always therefore chasing after the event because there will be always be more scare stories or other stories that occur. What we tried to do with the sensible risk debate that we launched last July was to promote a discussion. What we will do over the next few months is to try and promote some general principles which we would like all regulators to sign up to which broadly say that we are only interested in major risks not trivial risks, and we are not interested in paperwork, and we are working on those. If we can get that message across to people alongside all the other regulators, because it is not just health and safety, then we can beginning to redress some of the issues, but I think it will be a slightly uphill task because it is always much more fun to write stories about oranges being banned because of the pips.

  Q169  David Howarth: Can I ask you one final question about risk assessment and then ask you a question about the Compensation Bill, clause 1, which you were not looking forward to, I gather. There is something about your prosecution policy that I do not quite understand. What happens in the following circumstances: that an organisation has done no risk assessment at all and an accident has occurred but the situation is that if they had done a risk assessment what they did would have been reasonable. In those circumstances do you prosecute or not?

  Jonathan Rees: We have an enforcement policy statement which sets it out but the short answer is if they had taken all reasonable steps the fact they had not gone through the process would be immaterial and we would not prosecute.

  Q170  David Howarth: What I am trying to get at is whether the risk assessment itself is one of the reasonable steps or do you just disregard that?

  Jonathan Rees: If you are operating in a high-risk activity, let's say you are running a machine plant, and you have taken no account of the sorts of risks that you might face in running that plant and an accident happened, yes, we would probably prosecute you. If on the other hand (and I am not sure if you are getting at this) you had failed to properly record it that you had addressed all of the risks and you had put the guards on your machine or whatever it might be, then we would not prosecute. It is difficult to comment on hypothetical situations but we are certainly not trigger happy in those that we prosecute.

  Q171  David Howarth: I will not ask you to comment on the drafting of clause 1.

  Jonathan Rees: Good.

  Q172  David Howarth: Could I ask you to comment on what you might expect the effect of clause 1 to be, especially on public bodies?

  Jonathan Rees: As you say, I was not particularly looking forward to the question because essentially our prosecutions are all done under criminal law rather than civil law. What we like about clause 1, and we do not really have a direct interest in it, is that it does try to bring out the point that you need to take into account the desirability of the activity and that is something that we think is important and something that guides us in our policy. I think getting that message across is quite important. Whether you need to do it in the way that the draughtsman has done it in the bill is obviously not a question for me.

  Q173  Chairman: What about balancing risks, not so much risk versus desirability but risk versus risk? I remember I had a lengthy correspondence with HSE some time ago with the Railway Inspectorate section over their failure to balance the risk of not allowing a train to pick up passengers because the platform was a bit short and somebody might get out beyond the end of the platform and break their ankle with the likelihood that that person would expose themselves to the alternative risk of driving to work in a congested environment on an icy road. It seemed to me that the system gave you only the job of working out the risks from the platform being short and not balancing it against the alternative risk the person would take if they did not use the train. Is there any better way you could incorporate balancing risks into the system?

  Jonathan Rees: I think you have put your finger on a good point. The other classic example which is always quoted is in Milford Haven where they closed a school because it was too close to one of the plants there and the children then had to walk two miles down a busy road so what is the nature of the risk. I have to say that the system at the moment does not make it easy because it tends to be focused on individual duty holders to look at the risks for which they are responsible (and that is what is in the 1974 Act) rather than trying to look at the nature of different risks. I think that is one of the things that we will want to bring out. It is one of the things that will inevitably come out at the macro level in the debate that we are going to have on energy policy because there are risks in building new nuclear power stations. There are equally very important risks to society of not building them or using alternative sorts of energy like having LNG plants in the M25 corridor and so on. I think people are beginning to understand that we do need to try and work out how you balance off different sorts of risk, but the system does not really enable us to at present.

  Q174  Chairman: Does the process that was initiated by the debate which the Minister launched provide some scope for the balancing of risks at a perhaps slightly less dramatic level than the nuclear power option you have just talked about? Obviously there are means of assessing the alternative risk. You have got figures which we will show you of what will be the alternative risk if more people were travelling in cars as against using the railway station and there are risk management things that can be built in to alter that balance. Does the process that has been initiated by the Minister open up some prospect that we can make progress on this?

  Jonathan Rees: I would say that it brings it into the open. I think it is quite difficult to balance out the sort of risks that you are saying because in one sense you have a duty holder who is clearly responsible for the risk of somebody falling off a platform and breaking their ankle and in another sense you have a whole series of individuals and people who are driving for work purposes. That is part of the debate that we have tried to engage in and the road and rail one is the classic but there are many others.

  Chairman: Thank you very much indeed for your help this afternoon.





3   Note by witness: At most a handful over the last 10 years Back


 
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