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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