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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