Select Committee on Work and Pensions Written Evidence

Supplementary memorandum submitted by the Centre for Corporate

  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 our written evidence to the select committee of 15 November 2007 (annexed as part of this evidence) the CCA drew your attention to a 2006 audit—undertaken by the HSE itself—into HSE's own enforcement decisions following investigations. We are taking this opportunity to provide you further information about this as well as draw your attention to misleading evidence provided by the HSE to your own committee.

What the Audit report says

  In 2006, an HSE audit team considered a sample of 88 HSE investigations and 38 Local Authority Investigation—a total of 126 investigations.

  The main aim of the "Peer Review Panel" audit was to provide information and assurance on the quality of regulatory decisions.

  The incidents considered mainly involved investigations into deaths, major injuries and over-three days injuries.

  The audit team found that—taking into account the guidance contained in the Enforcement Policy Statement—HSE inspectors should have prosecuted in a total of 18 cases, 11 more than the 7 cases that actually resulted in criminal charges. That is to say that they should have prosecuted in almost triple the number of cases that were actually prosecuted.

  Of the 11 HSE cases that did not result (but should have resulted) in a prosecution:

    —    one involved a death;

    —    six involved major injuries;

    —    two involved over-three day injuries; and

    —    two involved dangerous occurrences.

  The report recognised that there was not a single example of "over-zealous" enforcement.

  The report concluded that:

    "there is a significant gap in following policies and that incident investigations should be resulting in somewhat more consistent enforcement activity than is currently the case."

  The audit team could therefore only provide:

    "a limited assurance that the system provides an adequate basis for effective control and is properly operated in practice."

  "Limited assurance" is defined as meaning:

    "Risk management, governance or control systems [are] not sufficiently developed or [that] significant levels of non-compliance [have been] identified."

CCA's View

  The audit shows that in the cases considered there should have been two and a half times more the number of prosecutions actually taken. It is the CCA's argument that this audit shows that the HSE should be prosecuting in at least around twice as many cases than it was actually doing so at the time when the audit was undertaken.

  It is important to note that the 88 HSE incident investigations considered were randomly selected, and it must have been the case that the HSE's intention was to audit a certain number of random cases, in order to be able to extrapolate—otherwise, of course, there could have been no purpose to the audit.

HSE's Response to the Select Committee, 28 November 2007

  At the recent select committee inquiry,[53] Mr Podger said the following about the audit (at Q.50):

    "I can only tell the Committee from the time I have been here [at the HSE], which is that we did this audit and we did find that we seemed to be slightly under-prosecuting. We drew this to the attention of all our staff who were involved and the consequence of this, it seems to me is that we now have a high level of prosecution"

  This is inaccurate and misleading in two ways:

    —    first, the audit simply did not show that there was a "slight under-prosecuting". In fact, it showed that the HSE should have prosecuted in two and a half times the number that it did; and

    —    second, it is difficult to see that there is now a "high level of prosecution". The table below shows that, looking at the number of prosecution cases brought by the HSE, the increase between 2005-06 and 2006-07 was only 8%, and it remains, with the exception of the year 2005-06, the lowest level since the HSE published figures (1999-2000).
YearNo of prosecutions

  It is therefore very difficult to see how Mr Podger could consider the level of prosecutions in 2006-07 to be "high".

  The CCA would like the Committee to raise the following questions to the HSE:

    (a)  Does the HSE/DWP accept that the audit shows that there needs to be a very significant increase in the level of prosecutions, around 2 to 2.5 times more? If it does not agree, could it clarify why not?

    (b)  Does the HSE/DWP accept that an increase of 8% in the level of prosecutions, taking into account the findings of the audit, and the previous prosecution levels does not actually represent a "high level" of prosecution?

    (c)  Does the DWP accept that it needs to be particularly concerned about whether the HSE has sufficient funding to be able to prosecute those duty holders when the Enforcement Policy Statement requires it?


  Our concerns here follow on from our previous evidence. In 2006, the HSE advised the HSC that, following its review of the EPS, the EPS was "fit for purpose." At its meeting in January 2007, the HSC agreed with this view.

  The CCA is of the view that neither the HSE nor the HSC were entitled to make this judgment since the review undertaken by HSE officials between 2003 and 2006 into the EPS had failed entirely to consider whether changes were required to the criteria for prosecution (paragraph 39 of the EPS).

  In May 2005, the CCA wrote to the HSE (please find copy of letter enclosed) setting out, amongst other things, that the prosecution criteria of the EPS needed to be changed so that, where a major injury was investigated (which only takes place in about 10% of those major injuries that are reported) and evidence showed that the major injury was the result of breaches in health and safety law—a prosecution would be expected.

  Although the HSE wrote back saying that this raised interesting questions, the HSE never corresponded again with the CCA on this point. Moreover, HSE responses to FOIA requests now show that:

    —    there is no paper record of HSE officials ever discussing internally whether or not to change the prosecution criteria; and

    —    the HSE never sought or obtained from its own statistics unit the levels of prosecutions following different kinds of reported incidents, to determine how the prosecution criteria were in fact operating.

  Our May 2005 letter to the HSE also raised another issue concerning the EPS. Paragraph 20 of the EPS states that, where an enforcement notice is imposed,

    "enforcing authorities should ensure that a senior officer of the duty holder concerned, at board level, is also notified."

  In our letter, we asked the HSE to undertake research into whether or not inspectors were actually doing this.

  Informal conversations with HSE officials indicate that this was never done—although we are now seeking confirmation of this. In our view, this failure is particularly significant. since Greenstreet Berman's recommendation to the HSE—following detailed research it undertook for the HSE—stated that the HSE should consider:

    "giving greater weight in the EPS and guidance on the involvement of duty holder senior officials in the enforcement."[54]

  It seems clear that the HSE never considered whether this obligation on the part of enforcing authorities should be given greater emphasis in the EPS.

  We would like the select committee as part of its inquiry consider recommending that the HSE undertake a review of these two elements of its EPS and in particular consider whether prosecutions following major injuries should be expected where investigations show that the injury was caused by a breach of health and safety law.


    —    we continue to be concerned about apparent low levels of investigation into major injuries and dangerous occurrences and would request that the Committee ask the HSE provide it will tables with numbers and percentages of major injuries investigated in different sectors and in different regions over the last five years; and

    —    we are concerned about the impact of the Treasury's Hampton review on the work of the HSE, and its undue influence in moving the HSE away from formal enforcement.

Centre for Corporate Accountability

January 2008

53   The Department for Work and Pensions' Select Committee into HSE/HSC, which took place on 28 November 2007. Back

54   Evaluation of EPS and enforcement action (main report) prepared by Greenstreet Berman Ltd for the HSE, 2006, p 40. Back

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