Supplementary memorandum submitted by
the Centre for Corporate
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 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 auditundertaken by the HSE
itselfinto 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 Investigationa
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 thattaking into
account the guidance contained in the Enforcement Policy StatementHSE
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:
six involved major injuries;
two involved over-three day
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 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
"Risk management, governance or control
systems [are] not sufficiently developed or [that] significant
levels of non-compliance [have been] identified."
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 extrapolateotherwise,
of course, there could have been no purpose to the audit.
HSE's Response to the Select Committee, 28 November
At the recent select committee inquiry,
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).
|Year||No 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
2. ENFORCEMENT POLICY
STATEMENT (EPS) REVIEW
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
lawa 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
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
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 donealthough we are now seeking confirmation
of this. In our view, this failure is particularly significant.
since Greenstreet Berman's recommendation to the HSEfollowing
detailed research it undertook for the HSEstated that the
HSE should consider:
"giving greater weight in the EPS and guidance on
the involvement of duty holder senior officials in the enforcement."
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
3. FURTHER ISSUES
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
The Department for Work and Pensions' Select Committee into HSE/HSC,
which took place on 28 November 2007. Back
Evaluation of EPS and enforcement action (main report)
prepared by Greenstreet Berman Ltd for the HSE, 2006, p 40. Back