Examination of Witnesses (Questions 400-419)
MR BILL
CALLAGHAN, MS
DEBORAH ARNOTT,
COUNCILLOR DAVID
ROGERS OBE, MR
DEREK ALLEN,
MR GRAHAM
JUKES AND
MR IAN
GRAY
24 NOVEMBER 2005
Q400 Chairman: I just
wondered whether the Health and Safety Commission would be a party
to drawing the regulations up as opposed to commenting on them
when they have been drawn up. I do not know where within Government
the advice would come for what should be in them.
Mr Callaghan: I have statutory
duties to advise ministers on regulations drawn up under the Health
and Safety at Work Act. Obviously this matter is being introduced
under public health legislation. I think you know about my letter
to Patricia Hewitt. I do think we have a locus. I think
the Commission would want to express a view. We have expressed
very clear views already and I am sure my Commission will want
to maintain a close interest in this not just in terms of the
protection of workers but also in terms of what might then be
the knock-on effects in terms of HSE inspector resources and environmental
health officer resources.
Q401 Charlotte Atkins: One
of the Government's arguments appears to be that smoking in pubs
and clubs is popular and therefore it should be allowed. What
is your response to that in terms of workers' health in particular?
Mr Callaghan: Our view is that
workers should not be unnecessarily exposed to harmful substances.
We have not taken a policy view on the popularity of smoking or
not, but in terms of should workers be exposed unnecessarily,
it is clear that they should not be.
Q402 Charlotte Atkins: In
your previous job you would have recognised that some unions in
the past in particular used to take a position that workers in
dangerous circumstances and dangerous workplaces should be paid
to cope with that danger. Do you think perhaps that is a way forward
for people who work in pubs, that they should be paid more to
recognise the unfavourable and unhealthy conditions?
Mr Callaghan: I am certainly aware
of that point of view which some of my former union colleagues
put forward. With my present hat on, no, I would not accept that
point.
Q403 Charlotte Atkins: I
assume you did not accept it when you were back at the TUC either.
Mr Callaghan: I did not, no. Looking
at the construction industry, we would not accept, for example,
the view that you are compensated by getting more money just for
working in a dangerous environment. We would expect employers
to exercise their duties under the Health and Safety at Work Act
to reduce those risks.
Charlotte Atkins: When I was a former
Head of Research at UCATT I did not accept the dangers of asbestos
either. Thank you.
Q404 Dr Taylor: I want
to explore the whole question of enforcement and this really affects
most of you except for Deborah. You have already said that the
two-tier system will cause problems. Could you start by comparing
and contrasting the ease of enforcement of the total ban and the
partial ban?
Mr Callaghan: An extra complexity,
of course, is what is going to happen in the devolved administrations.
We know that in Northern Ireland and in Scotland they are moving
towards effectively a total ban and I think that is likely to
be the case in Wales, so you are already getting some complexity
across the United Kingdom.
Q405 Dr Taylor: Your organisation
covers right across the whole UK, does it?
Mr Callaghan: Our organisation
covers Great Britain, but obviously we are in very close contact
with colleagues in Northern Ireland and also in the Republic of
Ireland, and we have talked about this quite a lot amongst the
three organisations involved with health and safety.
Q406 Dr Taylor: So it
puts your organisation in an extraordinarily difficult position.
Mr Callaghan: And local authorities
as well because I think the expectation is that, particularly
as we are now concentrating on pubs and licensed premises, our
local authority colleagues will be in the lead. The Commission's
responsibility does not just cover Health and Safety Executive
inspectors, we also have an overall responsibility for what our
local authority colleagues do. They act as an enforcing body on
behalf of the Commission's policy. If you have a simple regulation,
that is much easily enforced and I would say you are going to
get good self-regulation. A clear regulation where everyone knows
what is going to happen is going to be much simpler to enforce
than one which has a degree of complexity.
Q407 Dr Taylor: This is
exactly what we learnt when we went to Dublin. The people who
have to do the enforcing, would you like to add anything?
Cllr Rogers: There are a couple
of points I would like to make. Firstly, if the system is to be
more complex then it will be more costly to enforce. The estimate
we have is that if there are to be exemptions for pubs not serving
food the cost would be something like 50% higher than if those
exemptions did not exist.
Q408 Dr Taylor: Is that
because you would have to employ more staff?
Cllr Rogers: It is largely that.
The Government's New Burdens Doctrine would involve the local
authorities concerned being reimbursed for those additional burdens.
As to the effect on individual local authorities or environmental
health officers, I think Mr Allen from LACORS is better qualified
to answer that point.
Mr Allen: We have concerns regarding
the ability to enforce it if it is a two-tier system. The emphasis
for us is really about self-regulation, it is about supporting
businesses with compliance, which really underpins the recommendations
that came out from the Hampton Review, ie that it is important
that legitimate businesses can be supported in complying and making
it simple and transparent in terms of the legislation, and that
is helpful. Having a two-tier system will make enforcement difficult.
I think definitions around food and enclosed spaces, etcetera,
will also make it more difficult. There are some calculations
that may have to be undertaken to determine what an enclosed space
is and what a definition of food is. Our view is there will be
a cost anyway and we do not want it to be so proscriptive that
it says it must be environmental health officers or it must be
trading standards officers. If it is a responsibility for the
local authority to undertake this enforcement then we need to
field who we think is most appropriate to do that, and there will
be opportunities for some joint visits. As you will be aware,
today is an important day in terms of the Licensing Act. Local
authorities have a key role in enforcing those measures in the
licensing regime and it may well be that we can use some of that
joined-up working to have a more efficient enforcement regime.
Mr Jukes: The Chartered Institute's
membership goes right across the board. We are not just in local
government, we are in government and we are in the industry providing
advice and support. Frankly, you can enforce anything if you put
resources into it. You can take a view that this must be done
and here are the resources to achieve it. What we believe fundamentally
is that any exemptions and indeed complexities that are being
suggested are a complete and utter waste of public funds and resource
when we should be spending that resource in trying to deal with
some of the fundamental issues of inequalities in health and some
of the other issues which the Government wishes us to tackle and
for which scarce resources are currently available. Trying to
make something more complex when there is a simple issue here
about protecting all workers is a very clear message that the
Chartered Institute would want to get over to the Health Committee.
The Government is trying to make something very complex out of
what is quite a simplistic way of approach to protect all workers.
The key to compliance is voluntary compliance and management good
practice. As Derek has mentioned, we have the mechanisms of the
licensing regime that have just been brought in, we have the mechanisms
of being very clear about how we enforce food safety and health
and safety in pubs and clubs and in other places. It just seems
to me that to make additional exemptions in an area which is quite
complex anyway is actually going to confuse not only the general
public, it will confuse the enforcers, it will confuse the advisers
to those pubs and clubs and businesses and it will not create
a level playing field. I think it is an absolute waste of public
resource.
Q409 Dr Taylor: How do
we persuade the Government that they have got it wrong in your
view?
Mr Jukes: I hope they will listen
to the evidence that we have given extensively and indeed the
evidence in your initial report and listen to the medical support,
which I believe is unassailable, that there is a health issue
here. The real question is how one enforces it efficiently, effectively
and simply and gets the public to back what is a very sensible
measure.
Mr Gray: We also think there is
an ethical issue here that we would like you to express on our
behalf. We provide services and protection for everyone in the
workplace. How will we explain to people who work in pubs and
clubs that they are not protected when the office worker down
the road is? We think there is an ethical issue here that needs
to be taken seriously.
Q410 Dr Taylor: How do
we shift ministers from their complacent view that we are protecting
99% of the workforce and we do not need to worry about the 1%?
Mr Gray: It is a fundamental principle
of health and safety practice that we protect everyone equally;
we have never picked and chosen. The whole history of public health
legislation is that it protects everyone as best it can; it does
not select people for exemption.
Cllr Rogers: The Local Government
Association and the Department of Health have a shared priority
to reduce health inequalities and that has been in existence for
a few years now and there is a number of projects that are seeking
to work in that direction. We believe that the Bill as currently
drafted flies in the face of that because it would tend to increase
health inequalities. Some of our member authorities working with
health colleagues in different parts of the country have done
some research on this and I have a couple of figures I would like
to quote to you. This is about the current proportions of pubs
serving food and not serving food and in some cases the projected
proportions that would or would not. For instance, in the London
Borough of Southwark, 47% of pubs in the most deprived area of
that borough currently do not serve food, whereas only 18% do
not in the least deprived part of that borough. In the North East
for instance, the most deprived local authority area is Easington,
and 81% of pubs there do not serve food. In the least deprived
area in the North East, this figure is 23%. So there is already
a health inequalities issue there and we feel that would be worsened
if there were to be this exemption about whether food is or is
not served. If there were to be an exemption for private members'
clubs, some of those are also located in areas of higher rather
than lower deprivation and they often put on events that involve
children attending, that is another way in which we feel that
health inequalities would be worsened rather than improved.
Q411 Dr Taylor: There
are difficulties with defining food as well. This 81% in Easington
that do not serve food, do they serve crisps and nuts?
Cllr Rogers: Mr Allen is best
qualified to comment on the technical detail of that. Yes, in
principle the simpler the definition is the easier it will be
to enforce. It needs to be in language that the businesses and
the public can understand.
Ms Arnott: The Government has
a target under the Public Service Agreement to reduce health inequalities
by 10% by 2010 and that is measured by life expectancy at birth
and infant mortality. The research at a local level that Mr Rogers
was talking about we have backed up by carrying out a national
survey of 1,252 pubs around the whole of Great Britain and it
shows the same thing. If you look at the most deprived areas,
a far higher proportion of pubs do not serve food, something like
45% on average round the country. If you look at the least deprived
areas, it is a much lower proportion, it is around 14%. What this
means is that the lowest income workers are going to remain the
most exposed, the lowest income members of the public are going
to remain most exposed and they are also going to be less likely
to give up smoking. One of the effects of the smoke-free legislation
is going to be encouraging people to give up. This is seriously
going to exacerbate the problem of trying to reduce health inequalities
and I do not think the Government has taken this on board seriously
enough.
Q412 Dr Taylor: In Ireland
they have a fairly high level of fines. They pick up breaches
very quickly and so they have had a relatively small number, but
the fines do seem to be working. Their level of fine is
3,000. Do you think there should be this sort of
level of fine in this country too?
Mr Allen: We have looked at what
has been proposed in terms of fines. One of those is related to
the non-display of warning notices, that was a £200 fine
for failing to prevent working in a non-smoking premises and a
£50 fixed penalty for someone caught smoking on those premises
and that seems to be quite low. If you compare it with some of
the current legislation that relates to tobacco, failing to display
a statutory notice in a retail outlet—which is new legislation—is
a £1,000 fine, it is level 3. Selling tobacco to an underage
person carries a fine of £2,500 and selling alcohol to an
underage person carries a fine of £1,000. There are quite
significant differences. I think what is currently proposed we
would see as being too low.
Q413 Dr Taylor: So you
would agree that Ireland have it probably about right, would you?
Mr Allen: It is certainly higher.
Q414 Dr Taylor: They are
fining both the person who smokes and the bar owner who allows
it to happen, is that right?
Mr Allen: That is right. That
is what I understand is proposed here. The emphasis has to be
on proper and effective control by the management of the establishment,
I think that is really important. One of the things that we think
would be helpful is to have a clear written policy that needs
to be complied with. There is obviously an issue about enforcing
this on the ground in a pub where people may have had quite a
lot to drink and local authority employers have to go in there
and ask someone to stop smoking and also the consideration of
issuing the fixed penalty notice. There are some practical issues.
I think training is going to be an important element of how we
do things. If we can get the management control in the first instance
to deal with it at source and deal with that effectively then
I think it will reduce the need for that kind of heavy enforcement.
Mr Jukes: The real key to good
enforcement is voluntary compliance and good management practice.
I cannot stress to the Health Committee strongly enough that unless
we get that type of approach—and that has to be underpinned
by simplicity and understanding—then you are not going to
get it. You could throw resource at enforcing this legislation
but it would not work effectively. One has to get buy-in right
across the board and use all the levers of enforcement that we
can use.
Mr Gray: Let me give you an example
to do with this definition of food. None of the existing definitions
of food is helpful here. The definition of pre-packed food, for
example, has the presumption that the supply is to a caterer who
will in fact be processing that product further before it is used.
There are real difficulties in the public understanding of these
definitions. Frankly, food includes drink and so any premises
that is serving drink is serving food. The more confusion there
is in the minds of the public let alone the trade the less reliable
complaints will be made. People will not feel confident in complaining
or indeed their complaints will be spurious and that will waste
enforcement time.
Q415 Dr Taylor: What should
be done now to try and get the public on the side of a total ban?
Mr Gray: I think this example
of the spurious link between food and smoking is a good example.
The Government is proposing shelf stable pre-packed products,
but that does not include a pickled onion or a pickled egg and
it is that kind of ludicrous analogy that beggars belief.
Q416 Dr Taylor: What do
you understand by these other definitions of "enclosed"
and "partially enclosed" spaces?
Mr Allen: My understanding is
that the basis of that is quite a complex definition. It may well
be 70% enclosure. You are going to have to do some kind of calculation
on the premises to determine how much of that premises is within
an enclosed space. We are saying we need to look at simplicity,
eg should it be a single wall with a roof, that may be an enough,
so you can see that and it is pretty obvious to everybody that
that is considered to be enclosed. Certainly from a management
perspective it makes it easier and in terms of the enforcing authority's
responsibility. It is a little bit more difficult for the public
and this is where we come back to the issue about having these
things dealt with at source and good management practice. What
concerns us as well is we could spend a lot of time in the courts
arguing over what is an enclosed space, what is food, what is
a definition—and it could be a charter for lawyers to make
money perhaps—but not good, effective and efficient enforcement.
Mr Jukes: The whole point about
enclosed spaces is to have protection in inclement weather for
those who choose to smoke. It is about how one creates suitable
structures in order to protect customers who wish to smoke of
their own volition but not affecting other people. There are a
lot of suggestions around 70%. We would suggest that all you need
to do is to have a shelter, perhaps 30% of the floor space easily
understandable by management, enforcers and the general public,
that is what it is there to do.
Mr Gray: You will have seen examples
when you went to Dublin where this allowance has been abused.
What the trade have done is extend their premises into some kind
of external canvassed area where people are not just resorting
to smoke, they are selecting that as their position in that licensed
premises for the duration of their visit. That is not our intention.
We simply want an overhead canopy to keep the rain off.
Q417 Mr Burstow: The issue
of guilty knowledge comes under the Health and Safety at Work
Act in terms of the point at which you as an employer or an organisation
become aware of something becoming scientifically proven as being
a matter of risk to a person's health. We had the hospitality
industry represented here last week and I put to them the question
as to whether they felt that environmental tobacco smoke and the
evidence about its core effects in terms of cancer and health
disease were now sufficiently proven that they felt themselves
now subject to health and safety prosecution and they effectively
said yes to us to that question. Do you feel we have got to the
point in terms of the scientific evidence for this that we have
crossed that threshold in terms of liability under health and
safety legislation?
Mr Callaghan: There is existing
health and safety legislation as a general duty under section
2 of the Act for employers to safeguard the health, safety and
welfare of employees. As you may know, under the Workplace Regulations
we have provisions, for example, to make sure that people do not
experience discomfort from tobacco smoke in rest rooms. What has
happened, particularly with the development of the report from
the Scientific Committee on Tobacco and Health, is that the evidence
about the increased relative risk in non-smokers exposed to second-hand
smoke is quite clear. We see that there is an increased risk to
that category.
Q418 Mr Burstow: In terms
of guilty knowledge, we have got to the point where people would
be aware and therefore have to take actions. You were saying yourself
that people have to take action to minimise the risk and take
all practical steps. What is the practical step that can be taken
by an employer to protect their staff from the risk of tobacco
smoke?
Mr Callaghan: I think our understanding
now of what is practicable and effective is not what we had understood
ten years ago. Let us take this issue of ventilation, which is
obviously one step that employers might take. My understanding
of the evidence is that although ventilation can remove the smell,
it cannot tackle the issue of removing the carcinogens. When we
were looking at this matter ten years ago one would have seen
ventilation as a practicable step. I think now we would not see
this as an effective step.
Q419 Mr Burstow: So is
a ban the only practical step?
Mr Callaghan: This measure is
being introduced to protect not just workers but also members
of the public and so there are wider public health issues. I think
one of the reasons why we entered the lists is we did not want
to see, with such a partial ban, that one group of workers was
treated differently from another.
Ms Arnott: Can I add to the point
of guilty knowledge because ASH has a QC's opinion on this issue,
which I am happy to supply to you, saying that the date of guilty
knowledge is definitely passed. We sent this opinion to all the
major hospitality trade employers and we explained to them what
this meant in terms of their legal responsibilities and that is,
because ventilation and other solutions are not sufficient, their
only course of action was to prevent smoking in the workplace.
They are on notice of that now.
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