House of Commons - Regulatory Reform

Select Committee on Regulatory Reform Second Report

1 Overview of the proposal

1. This report reviews the proposal in the draft Order, addresses the relevant Standing Order tests and tests in the Legislative and Regulatory Reform Act 2006, and considers whether, as the DWP proposes, the affirmative parliamentary approval procedure should apply.

Summary of the proposal

2. The draft Legislative Reform (Health and Safety Executive) Order 2008 would abolish the Health and Safety Commission (HSC) and the current Health and Safety Executive (HSE), and transfer their functions to a new, unitary body, which would retain the name "Health and Safety Executive" (the "HSE" name being widely recognised). Diagrams of the existing and proposed governance models are at pages 3 and 6 of the DWP explanatory document.[1]

3. The current HSE consists of a Chief Executive (appointed by the HSC in consultation with the Secretary of State) and two other members (appointed by the HSC in consultation with the Chief Executive). The new HSE Board would take over the strategic function of the HSC. However, instead of the HSC's minimum six and maximum nine members (in practice it has nine), the HSE Board would, in order to incorporate greater variety of experience, have at least seven and a maximum of 11 members. As with the HSC, three members would be appointed after consultation with employer bodies, and three after consultation with employee bodies, but, in contrast with the HSC, a further member would be appointed specifically after consultation with local authorities.[2] The remaining four members would be appointed after consultation with other interested parties such as Welsh and Scottish Ministers and appropriate organisations such as professional bodies. All board members would be "non-executive" (that is, appointed from outside the HSE organisation). The new Chief Executive would not be a member of the Board, but would be appointed by and accountable to the Board (appointment being with the approval of the Secretary of State).

4. To reinforce independence and prevent conflicts of interest, the existing framework prevents the HSC from directing individual enforcement decisions on health and safety.[3] That restriction would be carried over to the new HSE[4] and to the Secretary of State.[5]

Summary of reasons for the proposal

GOVERNANCE

5. The proposal originated from the HSC and the current HSE themselves, and has DWP agreement. It aims to merge the two current statutory health and safety bodies into a unified governing body with greater outside (that is, non-executive) input. Further aims are to improve communication, accountability and strategic oversight, and to provide a better challenge function to management.

6. The HSC and the current HSE were established under the Health and Safety at Work etc Act 1974 following the 1972 report of the Robens Commission,[6] which recommended that there be a single governing body. However, the then Government[7] opted for a two-tier structure in which the HSC would exercise strategic control of the HSE and of local authorities in their performance of health and safety functions.

7. The HSC takes policy decisions on health and safety, advises Ministers, and secures compliance through the HSE. Its duties include proposing regulations, approving codes of practice, giving broad direction to investigations and inquiries, arranging for the provision of information services, and conducting research. The HSE is the operating arm for the HSC. It prepares proposals for the Commission, makes recommendations, and carries out the Commission's decisions. It has approximately 3,000 staff.

8. The HSC and the HSE believe that the current governance structure is outdated. The consultation and explanatory documents indicate that they have discussed updating the governance structure for some time and have attempted improvements without the need for changing the HSW Act—for instance through closer working relationships and more detailed monitoring of financial and operational performance, but have concluded that those improvements do not go far enough. They believe that the existence of two separate bodies remains confusing, that it reduces the impact of important communications, and that there is insufficient opportunity for non-executive input into the work of the HSE.

9. Detailed discussion of the current structure, the different roles of the HSC and the HSE, and of the reasons for the proposal—specifically, for proposing a unitary, non-executive model—is found at paragraphs 41 to 69 and Annex 2 of the initial consultation.[8] The non-executive model is stated as having the advantage of "providing a clear separation between governing and executive functions."[9] The proposal was made after consideration of guidance for and best practice in similar bodies.[10]

WORK WITH LOCAL AUTHORITIES

10. The Health and Safety (Enforcing Authority) Regulations 1998 allocate enforcement of health and safety legislation between local authorities and the HSE. Local authorities are the principal enforcing authorities in retailing, wholesale distribution, warehousing, hotel and catering premises, offices. More information about their role is available at http://hse.gov.uk/lau/.

11. Section 18 of the HSW Act as proposed to be amended by the draft LRO[11] would place a duty on the new Executive and on local authorities to work together to establish best practice and consistency in enforcement and, significantly in the light of recent events,[12] to enter arrangements for co-operating and exchanging information on carrying out their functions.

COSTS ISSUES

12. The initial consultation indicated that the likely incidental costs of the change would be minor.[13] (An additional advantage of retaining the HSE name is that the expense associated with a name change would be avoided.) Overall, the DWP considers that the change would not carry any adverse financial consequences for business or for the public[14] and hence has not prepared an impact assessment. Such transitional costs as do arise are anticipated to be below the £5 million impact assessment threshold.[15] It is conceded that "…benefits, such as those that will arise from more effective decision-making, are more difficult to value in monetary terms."[16]

1 The original version is at http://www.opsi.gov.uk/si/si2008/draft/em/ukdsiem_9780110808734_en.pdf Back

2 Current section 10(3)(c) of the HSW Act requires consultation with local authorities only alongside other concerned organisations and in relation to the three non-employer, non-employee posts generally. There is no requirement for appointment of a specific local authority representative after specific local authority consultation. Back

3 Section 11(4) of the current HSW Act Back

4 Schedule 2 paragraph 9(3)(b) of the HSW Act as proposed to be amended (see page 10 of the draft Order) Back

5 See section 12(3) HSW Act, as proposed to be amended (see page 3 of the draft Order) Back

6 Cmnd 5034, 1972 Back

7 The HSW Act received Royal Assent on 31 July 1974-after the General Election of February that year, but it is understood that the Bill's proposals received cross-party support. Back

8 The HSC's 'A Stronger Voice for Health and Safety' - see http://consultations.hse.gov.uk/inovem/gf2.ti/f/3938/118373.1/PDF/-/CD210.pdf Back

9 Initial consultation, paragraph 56 Back

10 See footnote 1 to paragraph 5 of the initial consultation Back

11 Page 5 of the draft LRO Back

12 The inquest into the death of Rhianna Hardie and suggestions made thereafter about how to improve communication between the HSE and local authorities Back