Select Committee on Work and Pensions Written Evidence

Memorandum submitted by the Centre for Corporate Accountability (CCA)

  The Centre for Corporate Accountability (CCA) is a charity concerned with promoting worker and public safety—with a particular focus on the role of state bodies in the enforcement of health and safety law and the investigation and prosecution of work-related death and injury.

  In this short submission, we would like to bring the following issues to the attention of the Committee.


  In 2000, in relation to directors responsibilities for health and safety, the Government stated in its Revitalising Health and Safety strategy,

    "It is the intention of Ministers, when Parliamentary time allows, to introduce legislation on these responsibilities."[46]

  In 2004, this Select Committee requested that the Government:

    "reconsider its decision not to legislate on directors duties and brings forward proposals for prelegislative scrutiny in the next session of Parliament."[47]

  In response the Government stated that it:

    "has asked HSC to undertake further evaluation to assess the effectiveness and progress of the current measures in place, legislative and voluntary, and to report its findings and recommendations by December 2005."

  Since then, a lot has been written on this issue—space restraints prevent us from dealing with it in detail—and the HSC also have discussed the issue at two further meetings. Out of all this, the CCA would like the Committee to be aware of the following:

    —    Following the introduction of voluntary guidance the number of very large organisations (average of more than 4,300 employers)[48] with health and safety directors increased from 58% to 64%, In addition, HSE's own research showed that only 52% of large and 39% of medium-sized organisations has a board director responsible for safety.[49]

    —    The most rigorous of the academic analysis commissioned by the HSE looking at the research on what motivates directors to take action concluded that: "legal regulations and their enforcement constitute a key, and perhaps the most important, driver of director actions in respect of health and safety at work."[50] More recently published HSE research also shows that directors/managers clearly recognise this. This states that "61% of duty holders agree or strongly agree that individuals believing they could possibly be imprisoned is essential or important for enforcement to have a deterrent effect—just ahead of fear of personal reputation damage at 60% whilst 52% cite individual legal consequence as essential or important".[51]

    —    HSE's research on the kinds of health and safety benefits resulting from positive safety action show that, at a conservative estimate, positive director action results in an average of 25% reductions in levels of injury.[52]

    —    No director or any medium or large sized company has ever been successfully convicted for a health and safety offence.

  This to the CCA shows:

    —    the 2001 voluntary guidance did not work—with only an increase in 6% of very large organisation having a Board room health and safety director, and only 59% and 39% of large and medium sized organisation;

    —    law is the crucial motivator to get action on the part of directors; and

    —    very significant health and safety benefits will accrue from getting positive director health and safety action.

  The HSE is adept at arguing that the the research can be cherry picked to argue the position from both sides of the argument—and we accept that there is inevitably within research some ambiguity.

  However, the evidence is overwhelmingly in favour of showing that significant benefits—both in terms of reductions in level of injury, but also in increased accountability. As a result, in light of the very likely considerable reductions in injuries that would result from imposing legal obligations on directors, the recent HSC decision (supported by the HSE and the Government) to continue for another one and half years down a voluntary guidance approach (a further two years has been wasted of course since December 2005) seems to border on recklessness,


  HSC's Enforcement Policy Statement (EPS) sets out the criteria for determining the circumstances when prosecutions should be expected. Whilst the criteria state that prosecutions should take place where a death has been identified, this is not the case where a breach causes a reported major injury or a reported dangerous occurrence.

  The CCA had argued that where either a reported major injury or dangerous occurrence has been investigated, and is discovered to be the result of an offence, a prosecution should take place.

  In relation to major injuries, the CCA has argue that there were two rationales for this: (a) for reasons of "moral accountability"—organisations that cause serious injuries though committing criminal offences should be prosecuted; but also (b) for reasons of deterrence; where detection is low (which is the case with major injuries as only 10% are investigated), then sanctions must be high. Yet at present only around 10% of investigated major injuries result in a prosecution—1% of all major injuries (figures based on 2003 figures).

  In 2004, the HSE undertook a full review of the EPS. HSE commissioned a number of surveys into views of inspectors, duty holders and "victims", as well as academic review of research into effectiveness of enforcement. In all of this, and in HSE's analysis of this research, the CCA cannot find any discussion on whether the prosecution criteria could or should be changed. Moreover the HSE have now admitted to the CCA two things:

    —    although the CCA asked the HSE to consider their prosecution criteria as part of the review, no further work—and in particular the points set out above—there is no record of this having been done; and

    —    in underking its review, the HSE did not seek or obtain any prosecution data from its statistics department. Therefore it was entirely unaware of the current levels—and trends—of prosecutions following deaths, major injuries, over three day injuries or prosecution.

  In the CCA's view, there could have been no effective review of the prosecution criteria—a key part of the Enforcement Policy Statement—without obtaining the most basic prosecution data, and considering whether or not they were adequate.

  The CCA is therefore requesting that the Select Committee calls on the HSC/E to undertake a re-review paragraph 39 of the Enforcement Policy Statement—with proper consultation processes—dealing with the circumstances when prosecution is appropriate.

  It should also make public details of prosecution levels in different sectors, different regions and different years following different kinds of reported injury.—so that the public can take a view on the adequacy of the prosecution levels.

  The HSE has told the CCA that their computer database does not allow this information to be accessed easily—and so has refused to provide this data to the CCA as part of an FOIA request. Whilst we are astonished that this is the situation—five years ago it was possible to obtain this information—the HSE should at least spend the time putting together this information of its own internal use (which can then be made public).


  In addition, the CCA would like to bring to the Committee's attention an internal audit undertaken by the HSE into whether prosecution decisions taken by inspectors were satisfactory or not. 126 investigations were randomly selected. These had in fact resulted in seven prosecutions. The audit team found, taking into account the EPS, there should have been 19 prosecutions—almost three times the amount. The incidents that did not—but should have—resulted in a prosecution included: one death, six major injuries, two over three day injuries and two dangerous occurrences.

  In our mind, is a significant failure—which we feel is linked to pressure of resources and manpower—not inspector competence.

  This audit would indicate that the HSE—if it was implementing its own EPS properly—should be prosecuting over 2000 investigated duty holders each year rather than the figures that is closer to 1,000 at present.

  Information on this audit—and the audit itself—can be accessed here:—releases/2007/apr25hseaudit.htm


  When Mr Podger came to your Committee, the following exchange took place between him and Mr Michael Foster MP asked him:

  Foster: ... in 2003 the figure.. you had 1651 front line inspectors, in 2004 1,604 and in 2005 1,530. What is the best number to have? Is it better to have 1,600 or 1,500?"

  Podger: The honest answer to that is that nobody actually knows, and if I may say so, having worked in other enforcement areas.

  Foster: So why do we not have 300?

  Podger: Why indeed?...

  The CCA finds this an extraordinary exchange—about which we hope the select committee will question him again

  Much could be said about this exchange; it totally fails to recognise any of the research evidence—some of which the HSE has itself commissioned—that asserts the fundamental importance of inspections, investigations, imposition of notices and prosecutions to ensuring compliance with health and safety law and in obtaining accountability.

David Bergman

Executive Director, Centre for Corporate Accountability

November 2007

46   Action Point 11. Back

47   Para 60. Back

48   p 7: Health and safety responsibilities of company directors and management board members: 2001, 2003 and 2005 surveys. Final reportBack

49   p 24, section 2.1.7: "Health and safety responsibilities of company directors and management board members: 2001, 2003 and 2005 surveys. Final report, and p 90, table 65, of Appendix D and E of Greenstreet Berman report on Evaluation of EPS and enforcement actionBack

50   See page 25-26 of this report for discussion of this. Directors' responsibilities for health and safety-the findings of a peer review of published research, Professor Philip James, HSE, 2005. p 50. Back

51   Evaluation of EPS and enforcement action Main Report, Prepared by Greenstreet Berman Ltd for the Health and Safety Executive 2006, p 12 and Appendix D and E, p 14. Back

52   This is from an alaysise of HSE data set out on its website at: and in more detail in report by Greenstreet Berman for the HSE, called, Case studies that identify and exemplify boards of directors who provide leadership and direction on occupational health and safety. (see Annex: Brining Justice to the Boardroom: The Case against Voluntary Guidance and in favour of a change in the law to impose safety duties on directorsBack

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