Memorandum submitted by the Centre for
Corporate Accountability (CCA)
The Centre for Corporate Accountability (CCA)
is a charity concerned with promoting worker and public safetywith
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."
In 2004, this Select Committee requested that
"reconsider its decision not to legislate
on directors duties and brings forward proposals for prelegislative
scrutiny in the next session of Parliament."
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 issuespace
restraints prevent us from dealing with it in detailand
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)
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
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."
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 effectjust ahead of fear of personal
reputation damage at 60% whilst 52% cite individual legal consequence
as essential or important".
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.
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 workwith 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 argumentand we accept that there is inevitably within
research some ambiguity.
However, the evidence is overwhelmingly in favour
of showing that significant benefitsboth 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
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
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 prosecution1% 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
although the CCA asked the HSE
to consider their prosecution criteria as part of the review,
no further workand in particular the points set out abovethere
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 levelsand
trendsof 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 criteriaa key part
of the Enforcement Policy Statementwithout obtaining the
most basic prosecution data, and considering whether or not they
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 Statementwith proper consultation
processesdealing with the circumstances when prosecution
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 easilyand
so has refused to provide this data to the CCA as part of an FOIA
request. Whilst we are astonished that this is the situationfive
years ago it was possible to obtain this informationthe
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
prosecutionsalmost three times the amount. The incidents
that did notbut should haveresulted in a prosecution
included: one death, six major injuries, two over three day injuries
and two dangerous occurrences.
In our mind, is a significant failurewhich
we feel is linked to pressure of resources and manpowernot
This audit would indicate that the HSEif
it was implementing its own EPS properlyshould be prosecuting
over 2000 investigated duty holders each year rather than the
figures that is closer to 1,000 at present.
Information on this auditand the audit
itselfcan be accessed here: http://www.corporateaccountability.org/pressreleases/2007/apr25hseaudit.htm
When Mr Podger came to your Committee, the following
exchange took place between him and Mr Michael Foster MP asked
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
Foster: So why do we not have 300?
Podger: Why indeed?...
The CCA finds this an extraordinary exchangeabout
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 evidencesome of
which the HSE has itself commissionedthat asserts the fundamental
importance of inspections, investigations, imposition of notices
and prosecutions to ensuring compliance with health and safety
law and in obtaining accountability.
Executive Director, Centre for Corporate Accountability
46 Action Point 11. Back
Para 60. Back
p 7: Health and safety responsibilities of company directors
and management board members: 2001, 2003 and 2005 surveys. Final
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 action. Back
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
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
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 directors. Back