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The Government have already taken steps to improve the quality and use of data we collect on children with SEN. We have incorporated new
indicators into the national indicator set for local government to measure the gap between children with SEN and their peers. We have incorporated into the national curriculum attainment scales for children with SEN who are falling below national curriculum level 1, and from summer 2008 schools will be required to provide information, at the end of each key stage, on teacher assessments for those pupils still falling below level 1. We have also committed to research how parents of children with SEN feel about the way their school and local authority assesses and provides for their child’s needs, to see what further improvements we can make to the system. Those commitments are already in place.
John Bercow: As children and young people can often encounter traffic jams, as it were, and lethargy as they go from one institution to another in the course of their education, does the Minister agree that one useful focus for the Bill as it passes into Committee would be to consider the question of information at the transition points in a child’s career—transition from pre-school to primary, from primary to secondary and from secondary to post-16?
Kevin Brennan: I agree with the hon. Gentleman. Those transition points are key to the development of children, and that is often where things can go wrong. That would be a useful area to explore further in Committee.
We have already put significant investment into personalised learning, and given schools more capacity to try out new teaching strategies and to offer more small group and one-to-one help where appropriate. We are backing that with further investment, which was announced in the children’s plan: £1.2 billion over the next three years to support personalisation, including support for children with SEN; and an additional £18 million over the next three years to be targeted at children with SEN, some of which will be spent on better data to measure their progress.
That investment will support a pilot scheme to provide children with dyslexia with reading recovery support or one-to-one tuition with a specialist dyslexia teacher. It will also support better teacher training—that has been mentioned a great deal in the debate—both when teachers join the profession and in their continuing development. Helping teachers to identify children with SEN and then give them the additional support they need is essential if we are to raise outcomes for these children.
Annette Brooke: I recall that the Dyslexia Association has a kitemark that schools and local authorities can aspire to. Are the Government looking at a form of kitemarking to spread good practice between local authorities and schools, perhaps across the whole range of special educational needs?
Kevin Brennan: The hon. Lady makes a very valuable suggestion; I shall certainly look at it after today’s debate.
Last October, we launched the inclusion development programme, which will offer professional development in key areas of SEN such as communication difficulties
and dyslexia. We are also working with a number of partner organisations, including the British Dyslexia Association, on “No to Failure”—a pilot project for schools in three local authorities that will help to identify pupils with dyslexia and provide individual specialist tuition. The project is also evaluating the impact of providing specialist dyslexia training for teachers, looking at what could work nationally, and raising awareness of dyslexia as a learning difficulty. We are providing up to £900,000 in funding over three years to support that project.
In addition, as I said earlier, my right hon. Friends the Prime Minister and the Secretary of State for Children, Schools and Families have asked the hon. Member for Buckingham to review provision for pupils with speech, language and communication needs. As the hon. Gentleman told us, he will be publishing his interim report shortly, and a final report in the summer.
Although there will be much further debate in Committee, I want to close by responding directly on a few of the issues raised by my hon. Friend the Member for Gateshead, East and Washington, West in her opening speech. On extending data collection to school action level, currently there is no external moderation of information at this level because external bodies become involved only at school action-plus level and above. For that reason, we are concerned that the data may not be of the highest quality, but I noted the point that my hon. Friend made and I will consider with colleagues whether such information would be useful to us. I hope she will take that undertaking in the spirit in which it is intended.
My hon. Friend also raised the issue of collecting data on the qualifications of special educational needs co-ordinators. At the request of my Department, the Training and Development Agency for Schools is looking into the development of nationally accredited training arrangements for new appointees to the SENCO role. That work entails extensive consultation and is at a very early stage, but I will keep her updated on it.
My hon. Friend also asked why medical problems are not identified as a special educational need. Medical problems such as asthma obviously do not necessarily entail a special educational need under the definition of the 1996 Act. However, where a medical problem does cause a special educational need, it may be categorised as another difficulty or disability. We are looking separately at how we can collect information on the number of children with a disability, as distinct from a special educational need, and that can include a limiting long-term illness. We have commissioned research on the identification of pupils with disabilities, and is due a report soon.
My hon. Friend asked why dyslexia is not listed as a category in the SEN framework. As she knows, my Department has asked Ofsted to review progress on the Government’s 10-year strategy for SEN “Removing Barriers to Achievement” by 2009-10, which is its mid-point. The Government will consider in the light of that review whether changes need to be made to the present framework. We would not want to pre-empt the outcome of that review.
The Government are absolutely committed to raising the chances of success for children with special educational needs, and to removing the barriers that are halting their progress. It is our duty to go that extra mile for those who, for whatever reason, start out further behind on the road to attainment and success. We will positively support anything to achieve that, which is why I wish my hon. Friend every success with her Bill.
1.18 pm
Mrs. Hodgson: With permission, Mr. Deputy Speaker, I simply want to thank everybody for coming along today. It has been a really good, good-natured debate with some fantastic, very informative contributions. I am sure that the House has moved forward the whole debate. I thank everybody for their support, and I look forward to continuing our discussion in Committee.
Bill accordingly read a Second time, and committed to a Public Bill Committee, pursuant to Standing O rder No. 63 (Committal of (bills not subject to a programme order ).
Health And Safety (Offences) Bill
Order for Second Reading read.
1.19 pm
Keith Hill (Streatham) (Lab): I beg to move, That the Bill be now read a Second time.
Before I describe the contents of this short Bill, I wish to thank various individuals and organisations who have helped me in reaching this point of its Second Reading. Above all, I must thank my hon. Friend the Member for Selby (Mr. Grogan), who kindly agreed to introduce the Bill on 5 December on my behalf as I was abroad. He, together with my researcher, Joe Moll, whom I also thank for his hard work, deftly chose today’s slot for the Bill’s Second Reading. I thank the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Stirling (Mrs. McGuire), for her support and her officials at the Department for their help in the preparation of the Bill and the explanatory notes. In particular, I thank Phil White, himself a former health and safety inspector.
I am grateful for the help and advice that I have received from Giles Denham and his colleagues at the Health and Safety Executive. I am also grateful to Jim Kennedy of the Union of Construction, Allied Trades and Technicians, whose headquarters is in the Clapham part of my constituency, and to Richard Woodward of the Association of Personal Injury Lawyers. Both those organisations are supporting the Bill.
I should also like to pay tribute to my several precursors with this Bill, the most recent of whom is my hon. Friend the Member for Caerphilly (Mr. David). I tread in their footsteps. Let us hope that this time there is a better result. Finally, in that precise connection, I should like to thank the Opposition’s Work and Pensions Front-Bench team for its sympathetic response to the Bill so far. I trust that I am not tempting fate excessively in making that observation—I detect the hon. Member for South-West Bedfordshire (Andrew Selous) in his place, so we shall know very shortly.
The Bill’s purpose is set out in its long title:
“To revise the mode of trial and maximum penalties applicable to certain offences relating to health and safety.”
The Bill is in three clauses and three schedules, the most important of which is schedule 1, which will become new schedule 3A to the Health and Safety at Work, etc. Act 1974. I shall describe the contents of the schedule in greater detail shortly. Clause 1 brings in schedule 1, which replaces the penalty provisions of subsections (1A) to (4) of section 33 of the 1974 Act. It also sets out the mode of trial and maximum penalties for the health and safety offences listed in subsection (1)(a) to (o) of section 33 of the 1974 Act and for offences under the existing statutory provisions where no other penalty is specified.
Clause 2 brings in schedules 2 and 3, which deal with “Consequential amendments” and “Repeals” respectively. Clause 2(2) confers power on the Secretary of State to make amendments to existing regulations as a consequence of the changes introduced by the Bill. It will enable the Secretary of State to introduce the necessary changes to regulations. Those will be made by statutory instrument subject to the negative resolution procedure.
Clause 3 sets out the short title, commencement and extent of the Bill. The commencement date will be three months after Royal Assent. As health and safety legislation is a reserved matter, the Bill will apply to Scotland as well as to England and Wales. As the explanatory and other notes indicate, the Bill has no significant implications for public expenditure or public sector manpower, it creates no new regulatory requirements, and no new compliance costs arise for those obeying the law. However, the Bill does engage with the European convention on human rights, and I shall say as brief a word as possible about that in due course.
As I promised, I shall now describe the changes set out in schedule 1, which deals with the mode of trial and maximum penalties under the 1974 Act. The schedule is in tabular form and lists the new proposed penalties at each level of court hearing: the proposed penalties on summary conviction, that is to say after a hearing in the magistrates court; and the proposed penalties on indictment, that is to say after a conviction in the Crown court. Schedule 1 sets out three changes to the present arrangements. First, it raises the maximum fine that may be imposed in the lower courts to £20,000 for most health and safety offences. The higher court fine remains unlimited.
At present, following the Offshore Safety Act 1992, the lower courts are able to fine up to a maximum of £20,000 for breaches of general duties to safeguard people’s health and safety under sections 2 to 6 of the Act. However, the current maximum penalty for specific breaches of health and safety regulations is a £5,000 fine, but such breaches may be just as serious as breaches of general duties. Specific breaches include, for example, breaches of fundamental requirements to do a risk assessment; the breach of asbestos regulations; and the breach of industry-specific requirements, such as construction, design and management regulations. It is for that reason that the Bill would extend the £20,000 lower court maximum to offences that, typically, have created risk directly or indirectly, or actual injury, damage to health or death. It is also why the £20,000 maximum is extended to offences that undermine the ability of enforcers to regulate health and safety, to prevent harm or to investigate what may be serious health and safety offences.
Let me emphasise that there is a proportionality in the approach to new penalties set out here, in that the £20,000 maximum is not sought for all offences. Specifically, it is not sought for offences by individuals where the maximum of level 5 on the standard scale would usually be quite enough for lower court cases.
The second change to present arrangements set out in schedule 1 would be to make imprisonment an option for most health and safety offences in both the lower and the higher courts. At present, imprisonment is an option only in certain cases. In the lower courts, it is an option only for failure to comply with an improvement or prohibition notice, or with a court remedy order, and for offshore offences. In the higher courts, it is an option only for failure to comply with licensing requirements or explosives provisions, or disclosures in breach of the Act. Those are all serious offences. However, the Bill will extend the option of a custodial sentence to a greater range of offences, and
that responds in part to the fact that judges have remarked in several cases over the years on the lack of imprisonment as an option, and said that they would have jailed the offender had they been able to do so. It is my expectation that imprisonment will continue to occur only in the most serious of cases and that there will be only a minimal increase in the number of offenders going to prison under this new legislation.
The third change to present arrangements that would be introduced by schedule 1 would make two offences triable only in the lower courts either-way offences, like most health and safety offences, so that they would be triable in either the lower or the higher courts. Those offences are, first, under section 20 of the Act, contravening any requirement imposed by an inspector—for example, to give information for an investigation or to leave premises undisturbed after an incident—and secondly, preventing another person from appearing before an inspector or from answering his or her questions. Under the Bill, those offences could in future attract the tougher penalties available in the higher courts.
It is evident that the Bill deals only with the issues of the penalties for health and safety offences and where they may be tried, but it is important to recognise that the courts and their sanctions constitute only one small part of the full spectrum of health and safety activity in this country. That we need health and safety legislation in place is beyond question. Last year, employees in Britain suffered nearly 250 work-related deaths, nearly 30,000 major injuries and well over 100,000 lesser injuries that kept them off work. Of course, it is not only employees whom the legislation seeks to protect, but members of the public who suffer death or injury at workplaces. In 2006-07, more than 120 members of the general public were killed and nearly 17,500 reported injuries in workplaces.
Most health and safety activity, however—like the law itself—is preventive in nature. Most health and safety provision is carried out by businesses in compliance with the law because they believe it is the right thing to do. By far the greater part of the work of health and safety agencies, the HSE itself and local environmental health officers is preventive in nature. The point is illustrated by Professor Macrory in his report “Regulatory Justice” when he gives the HSE statistics for 2004-05: 59,865 inspections carried out, 8,445 statutory notices issued but only 712 prosecutions initiated. Those figures are par for the course, although the figure for prosecutions in that example may have been somewhat lower than the annual average. In other words, prosecution—the subject of the Bill—is reserved for only the most serious offences, where criminal proceedings are most clearly in the public interest.
Why do we need the increased penalties set out in the Bill? There are three main reasons: tougher, more commensurate punishment, more effective deterrence, and greater efficiency in the dispensation of justice. On tougher punishment, there is a well-established view that the fines under health and safety legislation are too low. That is certainly the view of the HSE and the Government. As long ago as 1998, the Court of Appeal judged that the health and safety fines being imposed
were too low. In the consultation leading up to the Government’s publication of the strategy statement “Revitalising health and safety” in June 2005, the overwhelming view of consultees was that the general level of penalties imposed by the courts was inadequate; only 7 per cent. considered that the then, and still existing, framework for penalties was satisfactory.
In 2005, Philip Hampton, in his report on regulation and enforcement for the Treasury, noted that the existing maximum fine of £5,000 was “an insignificant sum” for most businesses. The point was reiterated in 2006 by Professor Macrory in his report, “Regulatory Justice” subtitled “Making Sanctions Effective”.
On the option of imprisonment, there is a history going back to the mid-1990s of judges expressing discontent at being unable to impose jail sentences for health and safety offences. Indeed, on 8 January my hon. Friend the Member for High Peak (Tom Levitt) cited just such a case in his Adjournment debate on carbon monoxide detectors. He noted that in 2006 a judge in the Nottingham Crown court complained of being able only to fine a man whose negligent work on a gas boiler had led to two deaths from carbon monoxide poisoning.
In practice, of course, because health and safety failures typically result from a chain of decisions rather than from one person’s action, it is likely to remain the case that the prosecution of individuals for health and safety offences will be infrequent. Nevertheless, I believe the courts are right to call for the availability of the penalty of imprisonment for the worst offences. In passing, I point out to my hon. Friend the Minister that it is not my intention that the new powers of imprisonment—if we obtain them—should become grounds for resisting the case for mandatory safety duties on directors. That case, which as my hon. Friend knows is promoted by UCATT, is an entirely separate argument.
The second reason for higher penalties is more effective deterrence: but to deter irresponsible behaviour and encourage compliance with the law, penalties need to be high enough to eliminate the gain from breaking the law. In his report, Philip Hampton puts the general principle:
“Illegal operators have incentives to undercut honest businesses, partly because penalties are low absolutely, but more worryingly because penalties imposed often do not reflect the commercial advantage a business has gained from non-compliance.”
Hampton had no doubt about the inadequacy of the penalties under the 1974 Act:
“In 2003-04, the Health and Safety Executive prosecuted 1,756 cases, with an average fine on conviction of £4,036 in magistrates’ courts, and £33,036 in Crown Courts. The deterrent effect of such fines is likely to be low. For any company other than the smallest, a £5,000 fine is likely to be an insignificant sum.”
That is why recommendation 6 of the Hampton review was that maximum fines in the magistrates courts should be increased and recommendation 7 was that fine levels should take account of the economic benefit gained. The Bill will implement those recommendations.
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