Select Committee on Work and Pensions Written Evidence


Memorandum submitted by Chris Jackson

1.  SUBMISSION OVERVIEW

  1.1  Since the overhaul in 1974 of the UK legislative and regulatory arrangements for health and safety there have been significant improvements in both workplace and public safety.

  1.2  There is potential for improvement to continue but it is hindered by an apparent paradox:

    increasing levels of safety are welcomed (and in some respects demanded) by society but disquiet is increasingly being voiced about the proportionality and the impact of regulation.

  1.3  The debate around health and safety is often presented in caricatured terms: "good guys and bad guys" but without any consistency. The HSE or other regulatory authorities can be variously portrayed as the guardians of public safety (following any major safety incident) or conversely at the root of perceived bureaucratic interferences (the banning of Christmas decorations or conkers in playgrounds). Companies and senior management can be variously portrayed as potential corporate killers risking safety in the name of profit, or entrepreneurs entangled in red tape.

  1.4  Caricatures in any field are rarely accurate or helpful. It is over 30 years since the Robens Review—calmly and by lateral thinking—produced a step change in effectiveness. There is an opportunity to achieve a similar step change now by looking through stereotyped perceptions.

  1.5  This paper submits that:

Legislative Framework

    (a)  The structure of the UK health and safety legislative framework (general duties in primary legislation supplemented by generic or specific regulations) is sensible;

    (b)  There is some duplication between different sets of regulations and there are also occasions where the introduction of regulations or their content is unnecessarily embellished or complex. However, this is not a major problem. The core requirements of the main sets of regulations are each required and the structure between them is logical; and

    (c)  There are however real issues generated by the operation of the framework. These derive from three main causes:

    (i)  the progressive extension of a law directed mainly to workplace safety into wider aspects of public safety and public policy. The HSWA is founded upon a single policy criterion—that the minimisation of safety risk trumps all other factors. This is sustainable in the workplace. However, it is one dimensional and therefore flawed when applied in areas where the public interest has to accommodate other factors—such as positive risk taking or balancing the safety of one group against that of others;

    (ii)  the lack of any statutory definition of reasonable practicability. HSC/E policy guidance has taken a line that implicitly requires disproportionate action to be taken. This leads to uncertainty as to how far the management of safety should go and whether "common sense" has a place as part of the test; and

    (iii)  Lack of clarity on whether individuals can and should be punished only for serious neglect (all agree that they should) or also for poor performance and/or for a one-off ("there by the grace") type error.

  These issues lie at the core of the apparent paradox and of an increasingly vocal questioning of the health and safety regime in public commentary. They therefore undermine the effectiveness of the regime and potentially increase the risks of injury or ill-health. This is avoidable and could be corrected without primary legislation. Since 2004 the current HSC has put in place some well-intentioned initiatives. These are welcome but do not acknowledge or address the underlying cause.

Resources; Inspection, Enforcement and Prosecution

    (d)  There is an apparent shortage of front line resource leading to increasing delays in investigations and prosecutions. Routine matters often take three to five years to come to a conclusion. This appears to be compounded by the way the resource that is available is used on the ground, particularly on major investigations.

    (e)  Investigation protocol works progressively from the "ground up". On large investigations there is duplication of evidence and effort. Senior levels of a company are rarely engaged by HSE until late in the process.

    (f)  There are also significant uncertainties for business and individuals in terms of the way representation is approached.

2.  WITNESS INTRODUCTION—C JACKSON

  2.1  I am a Partner with a commercial law firm, Burges Salmon LLP. I work with business and public sector clients in a range of industries advising principally on strategic safety and risk management. I have practiced in health and safety law since 1995 and have been involved in developments in the field of health and safety law and corporate manslaughter including the drafting of submissions on the draft legislation.

  2.2  I am a Solicitor-Advocate and have acted as advocate on significant public inquiries, arbitrations and tribunal hearings. I tutor directors of major organisations for the Institute of Directors in London and jointly developed for the Institute of Directors its course on legal risk and governance for Listed Company Directors.

  2.3  I have acted on most of the major UK rail accidents since Privatisation. I headed the Burges Salmon team advising the UK rail passenger industry on the policy debate on rail safety and rail industry structure at, and following, the public inquiries into the rail collisions at Southall and Ladbroke Grove; the 2004 Rail Review; and the 2005-06 implementation of the EU Rail Safety legislation. I am currently advising on a public inquiry involving the nuclear industry. During 2007 I led a team providing independent advice to 25 witnesses during the Buncefield Investigation.

  2.4  I conduct strategic health and safety training for directors and senior management in construction, manufacturing, transport and other sectors and act for companies in various industries defending health and safety prosecutions including fatalities and serious injuries.

  2.5  The firm of which I am a partner employs over 600 people. I have recently been appointed as the partner responsible for supporting our Head of Best Practice in ensuring that our own health and safety management system is effective.

  2.6  The views expressed in this submission are based upon my professional experience. They are however personal views and not expressed on behalf of either Burges Salmon LLP or of any of its clients.

  2.7  Whilst I am a defence lawyer, the views expressed in this submission are not a bid to water down the regime or its enforcement. Effective health and safety management is a key part of good governance and good business. Organisations (and where appropriate individuals) that fall short of clear legal standards should be held to account.

  2.8  There is a common interest in clarity and the effective use of resource. Business is not hindered by firm regulation but by ambiguous regulation. Ambiguity also undermines safety and public confidence. Whether more or less enforcement results from greater clarity is not the issue.

  2.9  This submission focuses on safety rather than occupational health issues, as more of my experience has been focused on safety. Occupational health issues are vital but they have a different risk profile and require different management and regulatory initiatives. Other witnesses will be better placed to provide evidence on that area.

3.  LEGISLATIVE FRAMEWORK

  3.1  The structure of the HSWA legislative regime is sensible. The Robens review in 1972 rightly identified that the primary responsibility for controlling risk lies with the person who generates it and the legislation should be structured to achieve that. The creation of general duties contained in the HSWA itself supported by specific regulations is logical and coherent.

  3.2  There is a certain level of duplication between different regulations. For example Regulation 3 of the Management of Health and Safety at Work Regulations 1999 contains a general obligation to carry out a suitable and sufficient risk assessment. Other regulations contain similar obligations but applied in specific sectors or facilities. In practice however this is inevitable. More specific regulations that apply to particular sectors or activities tend to reinforce the general regulations and do not conflict with them.

  3.3  On occasions however the same facts are prosecuted under three, four or five different regulatory heads. In addition drafting can become overly complex or fragmented in its introduction or implementation. For example the Railways and other Guided Transport Systems Safety Regulations 2006 ("ROGS") needed to achieve a situation where railway safety cases under 1994 UK regulations were superseded by a new form of safety certificate under European legislation. The drafting in ROGS was convoluted. However, on the positive side, a sensible and pragmatic approach was taken between the Regulator and industry to achieve the legal transition in practice.

  3.4  Whilst it would be better if multiple charges directed to the same facts could be avoided and some of the pain taken out of regulatory drafting at the early stage, these are not major issues in practice.

  3.5  The remainder of this section therefore focuses on the three factors that do produce problems.

Public Safety

  3.6  The HSWA can be a scalpel in the industrial context and a cudgel in the public safety context.

  3.7  In 1972 the Robens Committee was tasked to prepare a report on the "safety and health of persons in the course of their employment (other than transport workers whilst directly engaged in transport operations)." In addition consideration was to be given to whether steps were needed to "safeguard members of the public from hazards... arising in connection with activities in industrial and commercial premises and construction sites".

  3.8  Robens recommended measures that led to HSWA regime but recommended that it should not be used to make "macro" decisions on public safety. Robens' recommendation for the founding of HSC/E was

    "designed to ensure that [HSC/E] can and does deal with hazards which arise immediately from commercial and industrial activity[33] and which fall within the competence of its personnel whether the hazards affect workpeople, the public or both."

  However it continued:

    "We wish to make it clear, however, that we are not suggesting that an all embracing responsibility for safety should be placed on [HSC/E]. We can well understand the reluctance of the present occupational safety departments and inspectorates to be diverted from their traditional and primary interests by having to assume some wide-ranging and open-ended responsibility for safety generally; and we would not propose this. The expertise of the occupational safety inspectorates must not be dissipated through involvement in a wide range of matters remote from their major concerns."[34]

  3.9  However—through the absence of an obvious alternative—the HSC/E has become a public safety regulator as well as a workplace safety regulator. The HSWA has therefore come to govern many activities that do not "arise immediately from commercial and industrial activity". For example: Church graveyards (with the "topple test" used on headstones); police activities (the prosecutions of the Metropolitan Police Commissioner—a number of years ago relating to the pursuit of suspects across rooftops and recently following the Stockwell shooting); the voluntary use by adult swimmers of the natural pools on Hampstead Heath.[35]

  3.10  The legal drafting and DNA of the HSWA is to minimise risk. This is logical when dealing with confined systems—the guarding of a machine or the prevention of a gas explosion. It introduces structural tensions however when applied more widely. As the Chief Constable of Merseyside has recently questioned—how does the HSWA accommodate a situation where unarmed officers tackle an armed robber? Should a risk assessment and method statement be in place to prevent this happening?

  3.11  To comply with the law what should be the instruction to a Community Support Officer on attempting to help a child in danger if this places the CSO in the way of harm?

  3.12  Clearly public safety requires a robust legal framework to protect it and the HSWA has filled a vacuum. In doing so it has brought benefits. In the 1970's children's playgrounds were built on concrete; now they are built on soft matting. The HSWA' is not however well equipped by its drafting or philosophy to deal with situations where safety risk is not the only public interest involved or where the safety of one person or class is being risked to protect the safety of others.

  3.13  The effects of this "stretching to fit" have been amplified by the policy interpretation of reasonable practicability.

Reasonable Practicability

  3.14  The phrase "Reasonably practicable" was used in regulations for many years before 1974 and was adopted in the HSWA as the cornerstone of the general duties in Sections 2 to 6 HSWA.[36] These vary slightly in their phrasing but all require duty holder to ensure that risks to employees and others are reduced so far as is reasonably practicable. Reasonable practicability is also a core part of many of the obligations found in health and safety regulations. There is a reverse burden of proof—the accused has to show that he did everything reasonably practicable rather than the prosecutor having to prove that he didn't.

  3.15  Reasonable Practicability therefore sets the benchmark for what is required to avoid criminal liability. However, despite its importance there is no statutory definition.

  3.16  Current policy was most recently summarised in the 2007 ECJ Judgment in the unsuccessful infraction proceedings brought against the UK by the European Commission, citing the argument run by HSE on behalf of the UK:

    "The United Kingdom takes the view that its system of `automatic' criminal liability on all employers, subject to the `reasonably practicable' defence, which is narrowly defined, serves to give effect to Article 5(1) of Directive 89/391.

    According to [the UK] an employer may escape that form of liability only by showing that he has done everything reasonably practicable to avoid risks to the safety and health of workers. Accordingly, he is required to show that there was a gross disproportion between, on the one hand, the risk to the safety and health of workers and, on the other hand, the sacrifice, whether in money, time or trouble that the adoption of the measures required to prevent that risk from arising would have involved and that the risk itself was insignificant in relation to that sacrifice".

  3.17  This formulation is found in all HSC/E policy guidance documents on ALARP.[37] It is constructed upon one sentence in one judgment (of three) in an old 1949 civil law case (Edwards v National Coal Board). Other relevant cases talk of "disproportion" rather than "gross disproportion".

  3.18  The system of automatic criminal liability, qualified only where the risk is insignificant, applies not only in factories in offices but to a range of activities from churches to schools, hospitals to charities.

  3.19  The key issue therefore is how far the duty holder must go. Is there any difference at all between proportionality and the gross disproportion test? Can he draw the line when all proportionate steps have been taken or does the law require him to go further and to take disproportionate action—ie steps that do not seem reasonable or sensible?

  3.20  The question can be looked at diagrammatically:

  3.21  Duty holders should and must take all proportionate actions to control "their" risks (green box); equally it is clear that duty holders need not take actions which are grossly disproportionate (red box). The unresolved issue is whether once all proportionate steps have been taken does regulatory policy require a duty holder to go further? For example:[38]

    (a)  Should a local authority remove door mats from council accommodation to avoid trip hazards? (report—September 2006)

    (b)  Should a firm ban staff using bicycles to cycle to work? (report July 2007)

  3.22  Duty holders whose activities involve the public are particularly uncertain as to how far they should go. Should a cycling charity insist on helmets/high visibility clothing/padding? Should swimmers be allowed to swim backstroke in pools? Does a water company have to wheel clamp a water bowser providing emergency supplies to prevent vandals moving it and hurting themselves in the process?[39]

  3.23  In the industrial context the difference is often not as pronounced and may not have as much practical significance.[40] In looking at measures designed to prevent an explosion or electrocution an employer has—rightly—to go a long way to be able to argue that a step need not reasonably have been taken.

  3.24  Post Hampton it is generally accepted that regulation should be proportionate.[41] For example, current Treasury Guidance on risks confirms that:[42]

    "Government needs to take action that addresses risks in a proportionate, consistent way, based on the evidence of what is most cost effective... Government will act proportionately and consistently in dealing with risks to the public... Government will base all decisions about risks on what best serves the public interest. Action taken to tackle risks to the public will be proportionate to the level of protection needed and targeted to the risk."

  3.25  Since Hampton, and under its new Chairman, HSC/E has promoted sensible initiatives to emphasise that good safety management is not about the elimination of risk and the "conkers" type stories are decried as myths. Those stories do however have a root cause.

  3.26  Uncertainty is created by policy on the gross disproportion test. Either that test does go beyond proportionality and does require disproportionate action; or not—in which case confirmation of this is needed.

  3.27  Without this clarification the various initiatives are trying to tackle symptom not cause.

Corporate and Personal Liability

  3.28  There is currently:

    (a)  confusion of corporate and individual criminal liability;

    (b)  a lack of clarity on the threshold level of conduct by individuals that should attract criminal sanction in the safety context;

    (c)  Some individuals who are genuinely deserving of punishment going un-pursued leading to public loss of confidence in the system; and

    (d)  Consequent confusion in the minds of individuals on the level of personal exposure leading to risk averse behaviour.

  3.29  Individuals fear being held to account for an inadvertent error or the exercise of a value judgement that turns out badly with hindsight. Conversely there may also be a minority that does not fear punishment sufficiently.

  3.30  This is unhelpful. The debate about individuals tends to be polarised—portraying people as either paradigms of safety management or callous of the safety of others. There are indeed individuals around of both extremes but most people fall on a spectrum somewhere between. Neither the law nor enforcement policy are currently clear on how far along the spectrum conduct has to fall to be criminal. If we want to leave it open to allow prosecutions to be decided opportunistically based on the profile or sensitivity of the incident then that is a policy option. We ought though to be realistic as to the wider implications of that.

The three factors in combination

  3.31  An example—a teacher taking a small group of boisterous 14 year olds on an outdoor expedition. Is he acting criminally under the HSWA if he tries diligently to follow all the relevant guidance on the HSE website but through tiredness on the day makes a one off and inadvertent mistake and a pupil gets hurt as result?

4.  RESOURCING

  4.1  I do not know the detail of HSE/E resourcing. There is though a perception by H&S practitioners of a shortage of front line resource. The following (anonymised) email was recently sent by an HSE Inspector to an H&S lawyer at another law firm:

    "Hi Everyone—You will be pleased to here that I am now in a position to send out copies of the presentations from the [...] seminar in [...]. I know you have been waiting a long time so apologies for that again.

    However, I have to manually copy each CD, such are the limitations on our resources and I have to fit this in round the day job. I also have to minimise the number of CDs used.

    Can I please ask you to send me the name of one person from each organisation that attended, together with the appropriate mailing address. I will then send a CD to the nominated person from each organisation. If more than one person from each organisation needs to see the material, I will have to ask you to either pass your CD around or make your own additional copies.

    Thank you for your patience, it is much appreciated.

    [...], HM Inspector of Health & Safety."

  4.2  Resource appears to be a cause of increasing delays in investigations and prosecutions. Routine matters often take three to five years to come to a conclusion.

  4.3  There may also be issues of both pay levels and scarcity of relevant skills in the marketplace. For example construction professionals needed to work as HSE Construction Inspectors or individuals with process engineering and/or science backgrounds needed to work in the Hazardous Installations Directorate. The difficulties faced by HSE in this context are understandable in current economic conditions and they deserve support on this. It is in the public and business interests that HSE is effectively resourced both in terms of funding and expertise.

  4.4  The issue appears to be affected also by the way resource is used on the ground. On investigations, particularly major investigations, resources do not always appear to be deployed effectively. This creates delay and uncertainty for the businesses under investigation and undermines public respect.

5.  INSPECTION, ENFORCEMENT AND PROSECUTION[43]

  5.1  There is an investigation protocol which works progressively from the "ground up". This focuses on relatively junior witnesses over months and years. There is duplication of evidence and effort often on matters unlikely ever to be in dispute and which could be established more cost effectively. Judges in major trials discard much duplicated and peripheral evidence.

  5.2  Senior levels of a company are often only engaged in fact finding by investigators late in the process—or not at all. There are also significant uncertainties for business and individuals in terms of the way representation is approached. The preference of HSE (which can contrast with that of the police or other investigating authorities) is to see witnesses alone and without representation even if those witnesses are unfamiliar with a daunting criminal process and/or the individuals may be at risk of becoming a suspect later. Witness statements are handwritten for the witness by the investigator and requests by the witness to retain a copy of their own statement are frequently refused.

  5.3  These approaches stem from a doctrine that organisations involved and their advisers are not to be trusted and therefore any approach to investigation based on "cool but constructive co-operation" is to be avoided. Attitudes and degrees of co-operation of both organisations and the lawyers advising them do indeed vary. Some are more tactically reluctant than others. An arms length "test and verify" approach on the part of the investigator is therefore quite justified. A starting point that obstruction is to be expected is however counter-productive for all involved. It eats resources and time for both investigators and organisations.

6.  SUGGESTED RECOMMENDATIONS

  6.1  HSC/E should be asked to confirm whether the gross disproportion test requires anything more than that every proportionate step should be taken.

  6.2  The HSWA should continue to apply to public safety. Measures (below) should however be taken to improve the way in which the duties under it fit each context in which they apply.

  6.3  Reasonable Practicability should be defined in the HSWA. This does not require primary legislation. Section 15(3)(a) of the HSWA 1974 enables the Act itself to be amended by Statutory Instrument. A suggested discussion draft of the definition is:

    (a)  An action or other measure is reasonably practicable if it is:

    (i)  Physically possible by reference to current technical knowledge and invention; and

    (ii)  Proportionate to the risk in question.

    (b)  Whether an action is proportionate to that risk shall be established by reference to all relevant factors including (but not limited to):

    (iii)  the nature of the hazard concerned;

    (iv)  the likelihood of that hazard occurring;

    (v)  the scale of the potential impact in terms of the degree of harm and the numbers of individuals who might reasonably foreseeably be affected;

    (vi)  the behaviour to be expected (by reference to their age and physical and mental capacity) of such individuals;

    (vii)  the cost, time and difficulty involved;

    (viii)  Any relevant legislative or regulatory provision;

    (ix)  Any prescriptive requirement imposed in relation to the control of the hazard in question;

    (x)  Any relevant policy guidance provided by a regulatory body with relevant jurisdiction in relation to the hazard in question; and

    (xi)  [Whether the action might prevent a desirable activity from taking place (either at all, to a particular extent, or in a particular way) or might discourage persons from undertaking functions in connection with a desirable activity.]"[44]

  6.4  An advisory body, independent of regulators and those regulated, and similar in concept to the National Institute of Clinical Excellence should be established. This would inform debate (and compliance) by assessing and offering non-binding guidance on issues of public safety referred to it with a material public interest element.[45]

  6.5  Readily understandable policy guidance to individuals should be issued on the legal effect of S7 and S37 HSWA (and the concept of gross negligence manslaughter). In particular this should summarise the law's approach to isolated human error or a conscious judgement call made in good faith if all diligent steps had otherwise been taken. The rationale would be that if it is not possible to explain in digestible form the standard of behaviour required then how is an individual to achieve that standard?

  6.6  An expert audit/review reporting to the Committee or to an organisation independent of HSC/E should be carried out to assess:

    (a)  a number of non major incident cases selected by the audit team—possibly from a pool suggested by H&S practitioners—where the investigation and any prosecution have taken more than 3 years to conclude. The purpose would be to look at adequacy of resource and approach and to identify any common features;

    (b)  two or three major incident investigations to assess whether the "ground up" approach as a default represents best practice; and

    (c)  The balance of spending between front line and policy functions.

  6.7  The adequacy of HSE funding and the deployment of it should be reviewed in the light of the findings of the review.

  6.8  The review should also look at the practice in relation to witnesses in terms of the taking of evidence; provision of copy evidence and the interviewing of witnesses who have the potential later to become suspects. This aspect should involve the reviewers speaking to individual witnesses, drawn from all levels of organisations under investigation, to obtain their views—both positive and not so—on the process.

Chris Jackson

January 2008







33   Emphasis added where shown in bold in any quotations in this submission. Back

34   Robens Report: Para 292. Back

35   Where the potential application of the HSWA led to their closure until that was overturned by the Courts-see case extracts attached at appendix 1 of this submission. Back

36   Section 4 dealing with premises controllers is further qualified. Back

37   See for Example Reducing Risks, Protecting People (2001); ALARP at a Glance; Guidance by HSE to its Inspectors on whether Duty Holders have reduced risks so far as is reasonably practicable. Back

38   Copies of the relevant reports are at appendix 2. Back

39   This situation arose in a 2002 prosecution. Back

40   Although it can still do-for example guards on machines that inhibit use for the purpose required. Back

41   And HSE Guidance and Codes of Practice themselves increasingly use the language of proportionality-see for example Para 4 of the Managing Health and Safety in Construction (CDM) ACOP. Back

42   Managing risks to the public: appraisal guidance June 2005. Back

43   There are issues for debate also around major investigations where the role of the safety regulator is an issue for examination. Independent Investigation Boards are now used but they tend to rely on factual evidence gathered by and administrative and legal support from the regulator. That is though an involved subject and not dealt with in this paper. Back

44   This wording is the same as that in S1 of the Compensation Act 2006 which (in a civil law context) seeks to take account of societal context and societal impact when looking at whether a precaution or step should be taken. The Government's policy intent behind the section was a to achiever balance in the law in an assessment of control measures and to avoid risk aversion to societal detriment. Back

45   Such as the impact of HSWA on policing or other emergency services or the armed forces. Back


 
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