House of COMMONS
MINUTES OF EVIDENCE
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Telephone Number: 020 7233 1935
Taken before the Work and Pensions Committee
Mr Terry Rooney, in the Chair
Miss Anne Begg
Mr Oliver Heald
Witnesses: Ms Judith Hackitt, Chair, and Mr Geoffrey Podger, Chief Executive, Health and Safety Executive, gave evidence.
Q1 Chairman: Good morning, everybody, and welcome to our evidence session with the HSE. Glad you made it with the travel difficulties. I am going to start. There has been a welcome for the general thrust of the new strategy but there are those who have said it is "sufficiently vague to allow stakeholders little to disagree with". What is your response to that? Can you give us more detail on how you are going to implement the strategy?
Ms Hackitt: Certainly. I think the first thing to say is that we recognise at the outset that people would want to see detail, and so we tried to make it clear from the time that we launched the new strategy for consultation that we wanted to get agreement on the principles first and then the detail would follow. I think that has been a very important process, that we got people to agree on those principles before we started to flesh out what that means in detail. Having got that support, we have now produced our business plan for HSE for 2009-10, which very clearly shows how we start to adjust our programmes, to deliver parts of the strategy and the new work that we think we need to commission as part of the new work, and we are also looking to other organisations to come and talk to us about their contributions, and a number of those discussions are already underway.
Q2 Chairman: How will you monitor the delivery of the strategy? How is that going to be done?
Ms Hackitt: The strategy includes four very clear objectives, one of which is about reduction in the numbers of death, injury and ill-health, and we have stated from the outset that improving the rate of reduction in those statistics was one of the primary motivators for why we embarked upon this strategy in the first place. What we have also said in our objectives is that whilst those numbers around performance are important we also want to measure the increase in the level of engagement of other people and the extent to which they are participating, and the extent to which we get people to understand what our real agenda is about rather than continuing to see us as being the butt of much of the media ridicule that we are currently. What we have made clear is that whatever numerical measures are used to measure our progress they will indeed be measures not just of HSE's performance but of the performance of all of the players working together to make this strategy real.
Q3 Chairman: As you may know, the Select Committee paid a visit to the Olympic site yesterday and I think by common consent their health and safety strategy and profile there is extremely good but one thing they did say was that historically, and indeed presently, the health side of health and safety has been sacrificed for safety. That is not to denigrate at all safety. How would you respond to that?
Ms Hackitt: I think we have always acknowledged that the health part of the health and safety agenda is inherently more difficult to manage. The problems manifest themselves later. The inability to distinguish between what is work-related as opposed to what happens outside of work makes it more difficult, so we have always recognised that it is the more difficult part of the agenda to deliver on. We know we have to correct that balance and ensure that in some workplaces where health is probably the bigger risk - and there are some where that may be the case - we need to encourage them to focus on what are the biggest risks in their workplaces.
Q4 Chairman: I think it is called the "fit for work" certificate or whatever, but you have this new system where GPs would be required to record the primary cause of the visit and that is stored in the GP's computer but not transmitted anywhere. Have you had any discussions about some attempt to collate that information so you have some ability to identify patterns by postcode or whatever? Has anybody talked to you or have you talked to anybody else?
Ms Hackitt: We have been involved throughout in the Dame Carol Black work, and we have been very supportive of the initiative, but we have equally been clear about where our limitations lie in terms of the extent to which we can contribute to that and where we think our roles and responsibilities end. Geoffrey might want to say more about that.
Mr Podger: Just to add to what Judith has said, in trying to improve our data
in relation to health, which, as the Committee is aware, is of concern to us,
as it is to you, one of the things we have been specifically looking at is
using what is called the GP
Q5 Chairman: So they are sharing that information?
Mr Podger: Yes.
Q6 Chairman: We have been told previously that would be in the possession of GPs but would not be shared.
Mr Podger: What we are getting is aggregated data from the
Q7 Chairman: If you get the primary cause of the health issue, the occupation of the individual, the postcode where that individual lives and the postcode where they work, that surely then gives you a facility, I would hope, to start to identify patterns.
Mr Podger: Yes, and what we would get for the moment is a snapshot from those practices which are participating in this project. As I said, what we do not have at the moment, and we do not have the prospect of it, is that this would be universally rolled out.
Q8 Chairman: How many practices are taking part in this project?
Mr Podger: I cannot tell you offhand. I have a feeling it is about 30 or 40, from memory.
Q9 Chairman: What do you see as the main threats to health and safety in a recession and how are you working with employers to address that?
Ms Hackitt: The first thing is that we recognise that it puts businesses under
pressure in terms of cost, and therefore we hear and are already getting lots
of messages that suggest businesses are attempting to cut back on health and
safety as one of the things they can cut back on in terms of cost. So, rather
than wait to see whether that does indeed happen, we have taken a proactive
approach of getting the message out there with many partner organisations,
Mr Podger: We have actually had some work commissioned with the
Q10 Chairman: When you are talking about that reduction, is that in the bare numbers or is it in the rate of incidents?
Mr Podger: They would see it as a reduction in the bare numbers certainly. There is certainly the possibility of a reduction in the rate of incidents for the reasons I mentioned, which are that you may have the same number of people but working less hours, and also your workforce will not have the same proportion of new joiners in it, so the likelihood is it would affect both.
Q11 Chairman: There has been a long debate - and I know that in the consultation on the strategy this came up - about controlling the supply chain. Where do you think you have got with that?
Ms Hackitt: I think we are starting to get people to recognise the key role that they can play in that both in the private and public sectors. It does not surprise me at all that people's focus in the first instance is on putting their own house in order, and rightly so, but with a number of the major employers for whom in-house health and safety is now very much built into the fabric, we have already engaged in some very useful conversations about where they can go next in terms of influencing their supply chains up and down, and certainly I think we are in a position to take that forward. The other area where this, I think, has real possibilities and where we intend to pursue with some vigour is in the public sector and in particular with local authorities. In the conversations we are now having with local authorities around the complexity of their role, which extends beyond them being simply co-regulators but also being large employers and, moreover, in relation to this issue, they are major commissioners of services from, often, very small businesses, we see some real opportunities to engage in some projects with local authorities where we will work with them to identify how they get the health and safety message into their supply chains.
Q12 Chairman: I forget the name of it now but there is a Bill going through Parliament that, in and amongst, deals with the payment systems for subcontractors. Have you been consulted at all on that?
Ms Hackitt: Not that I am aware of, no.
Mr Podger: Not that I am aware of.
Q13 Chairman: One cannot help feeling that if somebody is not going to be paid they might be less attentive to things than they would otherwise be.
Ms Hackitt: Yes.
Q14 Chairman: Yet nobody has seen fit to consult with you on that legislation. Coming back to supply chains and local authorities, have you had any discussions with people like building regs officers, particularly looking at house conversions and extensions, about the role they might be able to play in getting more safe systems of operation?
Ms Hackitt: Certainly it is a possibility, and it is one that we have heard from a number of sources as something that we need to think about, and certainly we are quite prepared to explore that as part of this work that we are now doing with local authorities. Equally, we are conscious, and I think it has to be said, we know that local authorities, not just in the regulatory arm that we deal with but elsewhere, are going to be under similar cost pressures to many other parts of the public sector, so we will need to think through how that might work and what it might mean in terms of resources. We are aware of it as a suggestion and very willing to explore it with them.
Q15 Chairman: Generally speaking, the applicant pays a fee for that service.
Ms Hackitt: Yes.
Q16 Chairman: So it is not an add-on cost for the local authority.
Ms Hackitt: Not at all, and we think there is a sound logic to the notion that says not only should this extension be built to last and not put at risk the people who are going to live in it, but that it should be built in a way that does not put at risk those who have to build it in the first place. It is a logical extension of the process.
Q17 Chairman: One of the major issues, and there will be other questions later on the construction industry; I do not want to get into that, is the almost dysfunctional nature of the construction injury industry and how it is organised. There is a world of difference between the very large companies and the vast majority of companies that just employ four or five people.
Ms Hackitt: Yes.
Q18 Chairman: With bogus employment and all that. That is an arena that you are never going to have the inspection service be able to monitor. You might do the occasional bleats. It strikes me you need to draw in all the tools you can, and one of the duties of building regulations officers is to actually be on site all the way through - not every day all day - and I think that is a tool that perhaps could be much better used than it currently is.
Ms Hackitt: Yes.
Q19 Miss Begg: I have some questions about how you can engage with other aspects of government and local government. Your working days lost target and your work-related ill-health targets were not met and the last time you appeared in front of us it became very clear that meeting these targets are not just in your hands; it is obviously how you interact with local government and other parts of government. What is it you are doing to try and hit those targets in the future?
Mr Podger: We are very heavily engaged in the Health, Work and Wellbeing Project, of which, of course, the Committee is well aware, which is a joint project with the Department for Work and Pensions and the Department of Health. We have been very clear, and it has entirely been accepted by the other parties that, as we described previously to the Committee, our role can only be in the prevention area; it cannot be in the treatment area. Also, very obviously, as we know, much ill-health that is found at work is at least multi-factorial and may have its origins in things which are found in the home and not in the workplace at all. What we are all agreed on is that we will continue to do our bit in the workplace but actually recognise that it is a greater problem and that HSE is not the body that can be looked to to take on these other aspects.
Q20 Miss Begg: You have already in reply to the Chairman's questions mentioned the GPs because that is obviously part of the data collection
Mr Podger: Indeed, and it is very strongly, as you know, part of Dame Carol Black's view as to how the system can actually be improved. It is by tying occupational health into the NHS, not by setting off a separate occupational health service. That, undoubtedly, is a major area which would help the issue.
Q21 Miss Begg: Is there anything else you are doing with business? Obviously, the reporting and your data collection can be quite poor and it is not widespread across all sectors.
Mr Podger: No. The data collection, in fairness, does rely on the Labour
Survey. Also, I should say, I have just in fact discovered in fact through
looking my notes the answer to the Chairman's previous question about the
number of practices in the
Q22 Miss Begg: But are you doing any work with business to improve their reporting to you of work-related incidents and work-related ill-health?
Mr Podger: We already do put quite a lot of effort into that area, as the
Committee will know, particularly with the RIDDOR issue. We actually have a
system which is up and running at Caerphilly which actually helps businesses
report. Let me say, I have myself listened in on calls from business and it is
clear that people actually find our approach helpful. It is also clear, I may
say, that there is quite a willingness on the part of business to report. I do
not think we should take the view that people do not necessarily wish to do
this. On the other hand, as I said before, we do have to realise that the
RIDDOR system is not as useful as sometimes people think it is from this point
of view, and actually the kind of
Q23 Miss Begg: What about your relationship with local government? Evidence would suggest that you are perhaps not fully happy with the operation of the new Local Better Regulation Office. Is that fair? If it is, what are your concerns? What do you think needs to happen to improve it?
Ms Hackitt: I think when we last spoke to this Committee the Local Better Regulation Office was new. We were waiting to see how things developed. I think we are now in a position to be able to report that we have had some very constructive conversations with them. The area, if we had any concern, was in relation to the proposal from the LBRO to set up a primary authority system for large multi-location businesses and how that would fit with the activity that we already have in place to work with large organisations in our Field Operations Division. The recent discussions that we have had with the LBRO about how those two systems sit alongside one another and how they might work together have been very positive, and we have an ongoing work plan to bring the two things into harmony so they can sit alongside one another quite satisfactorily. So at this point we do not really have any concerns, and I think it is quite helpful to us to have the LBRO in place looking at all aspects of the many regulations that local authorities cover and for us to be able to feed into them our views on the health and safety aspects of that for them to deal with that then broader context.
Q24 Mr Heald: Why has the number of prosecutions by HSE fallen again?
Mr Podger: Our view is that actually prosecutions are, relatively speaking, fairly stable in numbers. We prosecuted 1,028 offences in 2007-2008 and that was broadly similar to the previous year.
Q25 Mr Heald: It was down, was it not?
Mr Podger: Yes, it was marginally down, but it would be extremely odd, frankly, if it always came to the same number or did not move up and down.
Q26 Mr Heald: It is the fourth year running that it has fallen.
Mr Podger: Even so, I do not accept at all - if this is your question, Mr Heald - that there is a downward trend which is just going to manifest itself forever. I think you can see that actually from the effort that we put into prosecutions, because, as you know, we ourselves no longer hit the 60/40 division between prevention and enforcement precisely because what we have done is move more effort into enforcement. We are very clear with our staff on the value we place on enforcement and, let me say, they are very clear that they share the same view, so there is no suggestion that the organisation is in some way weak on enforcement; we certainly are not. I think also it is worth saying, as we said to you before, that there is no doubt at all that the actual effort to bring cases is now greater than it was. We find fewer people are, frankly, prepared to plead guilty, which of course is their right but it inherently affects the amount of work that we do. It is also, I think, worth making the point that one of the things we have done of which the Committee was previously aware, and we have just done another one, is audit how close we come in our choice of cases to prosecute to the standard guidance which the Commission gives and which is publicly available and, in fact, the audit we recently did showed in fact that we are actually getting closer, we were actually pretty close, I think within seven cases, of actually what a panel would have considered the right cases to actually prosecute and, as you will appreciate with your background, inherently it is a judgement issue. You cannot be sure. So I think we are quite clear that people actually are prosecuting on the basis set out by the Commission. We are also very clear that a lot of effort is being put into this. Let me say, in looking at the performance of our individual inspectors, we do consider whether their own pattern of enforcement is a reasonable one given the particular sector and the particular activity they have been engaged in and, clearly, people will have different patterns depending on what they are engaged in. So I think actually the figures are more or less the same. I do not think there is going to be a constant downward trend, what I think is clear is there is actually a trend towards greater emphasis on the effort we put into enforcement.
Q27 Mr Heald: As you know, Parliament takes the view that there should be a greater deterrent against poor health and safety practice. We introduced the Health and Safety Offences Act, which obviously beefs up the penalties.
Mr Podger: Indeed.
Q28 Mr Heald: Certainly for the magistrates' court. Is it that you would expect then that the amount of fines would increase or more people would go to prison as a result of this initiative from Parliament?
Mr Podger: Yes. First of all, as you realise, we very much welcomed the Health and Safety Offences Act. We thought it was an extremely important and helpful piece of legislation. Obviously, as you will appreciate, as a prosecutor it is our duty to seek a penalty which is commensurate with our view of the offence, so we do not just automatically up the tariff for everybody but, having said that, we of course would expect the new powers of sentencing to be used, including both higher both fines and imprisonment where that is justified, and we will certainly press for them. So we would look to see overall that that actually increased but, as I say, we still nevertheless, as a prosecutor, would seek to act in a manner which was commensurate with our perception of the offence.
Q29 Mr Heald: Actually, the average penalty has fallen for an HSE conviction in terms of a fine, has it not, for the second year running, and is now down to £12,896 per offence?
Mr Podger: The only thing I would say is that, as will be very obvious to you, the actual range of fines is enormous.
Ms Hackitt: Yes.
Mr Podger: There are huge sums which have been awarded against some companies, there are otherwise smaller fines, and, as we also know and have discussed with this Committee before, in actually setting fines account is taken as to what the consequences on that employer and, therefore, their workers would be, and that is a slightly awkward area, to be honest about it, but it is a fact. So, again, I do not think our perception is that we are finding it more difficult to get to the fines which we believe to be commensurate with the offence. Obviously, in individual cases, quite properly, magistrates and judges may take a different view from us.
Q30 Mr Heald: As you know, in the Health and Safety Bulletin what they said was that they felt the new Act was "unlikely to increase either the number or length of imprisonments significantly. Magistrates have long been able to use prison for serious breaches...but have, like judges, been reluctant to do so - and it is hard to envisage them suddenly availing themselves of custodial sentences for lesser offences." Do you take that sort of view, that really, whatever Parliament says, the courts will just go on as ever?
Mr Podger: I think that is a pessimistic view, to be frank. I think actually, particularly, as you know, that in a sense there is a sort of dividing line as to whether you are being prosecuted for some kind of manslaughter or whatever or whether you are being prosecuted under the Health and Safety at Work Act, we will find that with prosecutions that take place under the Health and Safety at Work Act people will be more sympathetic to the use of the higher penalties which are now available. I agree it may take time but, nevertheless, we intend to press for them where they are justified, and we really have no reason at this moment in time to think there will be resistance.
Q31 Mr Heald: We wonder whether you are dispirited, because you are prosecuting less cases, the average penalty is less than it was, Parliament has done its best, introduced this Act and hoped that it would be a better deterrent, but people in the health and safety world do not really think it is going to make any difference. Is that an unfair picture?
Mr Podger: We are not dispirited, I am quite clear on that point. I am very spirited on this point and, let me say, my inspectors are even more so, and rightly so. The organisation is quite clear that actually these powers are available to us, they need to be used in the public interest and the interests of justice, and we intend to do so. You do not find walking around HSE, as you might have found, to be frank with you, four years ago, people saying "Oh well, we can't do anything on enforcement. The people at the top won't support us," or any of that nonsense. Absolutely not. We are very clear that this is a key part of what we do. We must at all times act properly as a prosecutor and not go off on frolics of our own but, within that perfectly proper constraint, we are serious about enforcement and we do not hesitate to put a lot of effort into it, and the data you have shows that clearly.
Q32 Mr Heald: Do you think the Sentencing Advisory Panel has thrown in the towel? The proposal for a guideline on sentencing in this area was December 2007 which seems quite a long time ago. Why are they taking so long?
Mr Podger: First of all, I should say we are engaged with them on this. It is not that in some way we have had the door shut on us. I think the honest answer to your question from our perception is simply that they are under such pressure on a number of fronts, for reasons, again, which will be very obvious to you. I think that is the only reason but, as I say, we are, as prosecutors, well able to highlight the availability of the new powers and their appropriateness, and we do that and we will continue to do that. We will also continue to play our part with the Panel in trying to get these guidelines out as soon as possible.
Q33 Mr Heald: So morale is high?
Mr Podger: I think morale is high on the enforcement field and I am very keen that we should continue to be seen as a fair but forceful prosecutor. I think that is a key part of what we do.
Q34 Mr Heald: I think it is particularly important, do you agree, with the recession that we are in, where there is a danger of people cutting corners, that there should be a firm approach?
Ms Hackitt: Yes.
Mr Podger: Indeed, and Judith has made that very clear, that we are not in that game.
Ms Hackitt: Absolutely. I think one of the measures of success of the strategy itself has been the way in which it has been received by our own staff, which, again as Geoffrey says, is not always the case, sometimes our own staff are our greatest critics. I have to say that the way in which they have responded to the principles of the strategy, and in particular the importance we have attached to enforcement and securing justice, has been very positive. It has been welcomed internally as well as externally as a clear statement of what we are about and I think because of that and the lines we have taken in the strategy morale in the organisation is significantly higher than it has been for some time.
Q35 Chairman: Notwithstanding that, and I understand all that you have said and the reasons you have said it but, two things: one, there is fairly concrete evidence of widespread geographical differences in penalties, in the South West you will be fined a lot more than you will in the North East, and something needs to be done to address that. Secondly, do you not think it is ironic - and you can blame Parliament for this; we are blamed for everything else - that it is a maximum fine of £50,000 in the magistrates' court for killing somebody but for anti-competitive activity you can be fined 10 per cent of turnover. Is something out of kilter there?
Ms Hackitt: From a personal perspective, I think that is morally wrong. Equally, I think it is wrong that there is taken a view that a life lost in the workplace somehow counts for less than the life lost of a member of the public. I think both of those things need to be addressed and, yes, I would absolutely agree with you that it is not something on which we should rest where we are but continue to press for more equitable viewing of different offences.
Mr Podger: If I could just add on another point. I think it is also worth making the point that often for companies it is not simply the fine that is the punishment; it is actually the publicity which surrounds it. We in HSE make a lot of effort, not just for retributional purposes but also because very often we need to publicise the offence that has been committed, so people themselves who might otherwise commit it understand it in time and get some advice or whatever. I think that is very effective. It is noticeable that the most complaints I have had from business in my entire time in HSE has been over the fact that we, as a matter of deliberate policy, advertise convictions on our website, which means, of course, that if you Google certain companies, including everyday names, their name will come up as having an offence, and we have absolutely maintained - indeed, I reinstated - that we will continue to do this. I hear entirely what is said about the geographical disparity of fines, which I do not think is a problem only in our area but is a more general one, but, again, I think convictions of any kind are quite a punishment and quite a deterrent also for the publicity reasons, and that is an area where we want to try to do more because we want to try and publicise some of these cases nationally as well as regionally and locally.
Q36 Chairman: The concern I have, and Oliver raised the issue around the
Sentencing Advisory Panel, is that when these discussions are going on, are you
invited to the table or are you seen as a small-scale regulator: "It is up in
Mr Podger: No, it is perfectly reasonable to be brutal and let me be brutal back. We are normally invited to the table. On the rare occasions when we are forgotten, we bulldoze our way in.
Q37 John Howell: In your Rivers Lecture you were very pragmatic about how you saw the Board duties playing out within a company in terms of not raising false expectations. What I did not get though was a feel of how you saw the whole thing put together. Do you have a model, an image, of how you see this playing out in terms of best practice in the boardroom?
Ms Hackitt: Absolutely. It is more than a model. It is 20 years of experience of working in business, where I have seen it happen in practice, so I know what it looks like when it happens. That is the reason I was so strong on this whole issue of the credibility gap, because unless you actually act in a way that is consistent with what you say then pretty much all workforces in all workplaces are very smart people and if the words and the actions do not match up then what you say is not believed. I have said to a number of companies, particularly in the private sector, already that I think statements like "Safety is our number one priority" are really less than helpful when it is patently obvious to everybody in the company that is not the case, and probably should not be because they are in business to make money and survive the long term. I am more than happy for safety to be a core value in the business, but that is very different from it being called the number one priority.
Q38 John Howell: If it is not a number one priority or in amongst those top priorities, what happens in your view, or should happen, at the board level in terms of somebody having responsibility for it? How does that actually translate in terms of board action?
Ms Hackitt: All too often, board activity tends to be about receiving reports that give them assurance that all is well. So to a large extent it is about asking the right questions, and that does not mean you have to ask highly technical or very devious questions but some very simple questions that assure you that you are getting good information. Largely, it is about culture, so if the culture of the organisation is one where the board does not want to hear bad news then they will not hear bad news, even when they should. They have to ensure that they ask the right questions and are prepared and willing to take on board bad news when that is what they need to hear so they can take action.
Howell: There is surely a quantitative
difference between a
Ms Hackitt: Of course.
Q40 John Howell: How do you see that coming out in terms of the practical approach that a small company might take? What is the difference?
Ms Hackitt: The approach has to be different and, equally, the approach has to be different in different businesses of similar size but in different sectors. You have to find the right approach to suit the workforce, but what I am absolutely sure about is that whether you are in a small business or a large one of any type, the best people to involve are the workforce themselves, because they are the ones who know the problems, and they also, more often than not, have good ideas about what some of the answers should be to some of the problems. So in whatever size or structure, the board cannot manage or lead safety in isolation, they have to get involved and get out on the shop floor, whatever that might look like, and talk to workforce.
Q41 John Howell: Given those differences within different sized companies and even within different sectors, is your view that guidance is going to be better than legislation in terms of getting that duty over?
Ms Hackitt: From our perspective, I think non-prescriptive guidance or legislation will always be the way forward. We cannot be expert on that whole array of businesses that exist out there, nor should we be. What we should do is describe in principle terms and in outline what we want them to do and, moreover, what we want them to achieve, what the outcomes should be. As I have said previously, I think there are numerous other organisations between us and those businesses who can play a very important role in helping them to customise our more generic guidance and advice into something that is more applicable to those types of businesses. Trade associations in particular can play quite an important role in helping them to get to sector-specific guidance that is meaningful, and that applies for me whether you are talking about EEF or whether you are talking about the Small Business Federation or, indeed, you are talking about the teachers' union turning this into advice and guidance for what this means for teachers.
Q42 John Howell: Is the absence of those so far part of the reason why your guidance has reached only such a small percentage of board members in terms of their awareness of what is in it?
Ms Hackitt: Yes, yes, it is. Indeed, I was talking only yesterday to the Federation of Small Businesses in terms of producing customised guidance now for directors of smaller businesses who do not feel that the guidance we produced with the IoD is quite user-friendly enough for small businesses yet, and that piece of work is already well advanced.
Q43 Chairman: In response to our report last year, where, as you know, we had something to say about directors' duties for about the third time, the Government said it was evaluating the impact of the voluntary approach and the evaluation was due to commence in the latter half of 2009. Do you know who is taking the lead on that?
Mr Podger: In terms of the evaluation? The evaluation is being undertaken basically under a steering committee which is chaired by Patrick McDonald, who is our Chief Scientific Adviser, and it has on it representatives both from the trade union side and the employers' side, and that will produce an input to the ultimate Board discussion.
Q44 Chairman: So you are leading the evaluation, not DTI or whatever?
Mr Podger: Not at all and, as I say, we are intentionally doing it on a tripartite basis to reflect the nature of HSE.
Q45 Chairman: When do you expect that to come out?
Mr Podger: The intention, as I understand it, as you were saying, is to complete that work by the end of 2009, which would then allow a Board discussion in early 2010.
Q46 Chairman: If you were to recommend a statutory code of duties, when might that progress?
Ms Hackitt: It would need to go through the normal process then of us formulating what those proposals would be, putting them out to consultation, taking the debate. If we had the debate in the Board early in 2010, one might expect it to take up to a year from then to come into force.
Q47 Chairman: There is an argument that we have had 35 years of the voluntary approach, and every two or three years a suggestion is made that perhaps this is not working and we need to re-evaluate, and it still is not working. If the voluntary approach has not worked after 35 years, is it ever going to work?
Ms Hackitt: Insofar as it is a voluntary approach, what we are trying to do here is much the same as we do with every other piece of regulation that we have, which is that you have a framework in the legislation, but then through guidance and advice we encourage people to do the right thing, which is the same balance between carrot and stick that we already have in place in most other aspects of the way we regulate. There are already duties on directors within the Health and Safety at Work Act. We can argue about and discuss how often those have been used in prosecutions but, nonetheless, there are duties already there. They have been reinforced, we believe, by the raising of the health and safety offences and levels of penalties in the Corporate Manslaughter and Corporate Homicide Act but the basics of the duties are already there in the Act.
Q48 Chairman: I do not really want to go back down this road, but one of the big arguments in the corporate manslaughter debate was the inability to identify a single individual and, therefore, you could not have individual liability because you do not have a statutory code.
Ms Hackitt: Yes.
Q49 Chairman: If you had a statutory code, you would be able to identify an individual. Anyway, let us move on. To link into that, we in our report last year made a big play about worker engagement, and we are pleased that you have picked that up in your strategy. You have used this phrase "mainstreaming", but how are you doing that? How are you promoting that? How will you know whether you are succeeding not?
Ms Hackitt: Let me answer the how we are promoting it first. We produced new guidance ahead of the publication of the strategy last year on workforce engagement, worker involvement, which recognised the reality of the many different structures that exist in workplaces, so it covers the whole gamut from fully unionised workplaces through to those that are non-unionised and those which form the majority, which are a mix of unionised and non-unionised, and talked about how to go about engagement in all of those. What we believe is that the areas where this tends to be most difficult are in businesses of 200 employees or less, and one of the first activities that is already in our business plan for next year is to initiate some pilot projects that will look at improving training for safety representatives among smaller businesses and encourage workforce members and first-line managers to work together on health and safety problem-solving. We are running those as pilots and we are already talking to organisations like EEF and FSB about how they will work with us to find small businesses to act as "guinea pigs" to go through that process with a view to them becoming case studies that we will promulgate with other businesses.
Q50 Chairman: Could we call that the Worker Safety Advisory Scheme?
Mr Podger: I think we could call it part of the inheritance of the Worker Safety Advisory Scheme.
Q51 Chairman: Is there any prospect of that scheme being resurrected? We were told a year ago that you were looking at this. When we met with John Spanswick, he said it had been an outstanding success and he wanted to see funding for its resurrection. Where are we with that?
Mr Podger: There are varying views on this subject, as we have discussed before, and, as we have discussed before, the Health and Safety Commission, I think it was then, did actually discuss the scheme. They did actually take an external academic view of the scheme, but it has to be said that the overall view of that scheme was that it had not been successful in actually producing innovative thought and it was not generally well regarded. It is true that in the construction r, hence no doubt John Spanswick's comment to you, it does appear that there was a particular keenness for it, but I think one also has to say that it was intended anyway as a scheme which would basically pump-prime and promote activity. It was not intended, as it were, to run in perpetuity, and I think it would be difficult to make a case for that. I think what we are doing now about worker involvement is certainly legitimately seen as a successor to that exercise.
Ms Hackitt: I think what Geoffrey says about pump-priming is an important
principle really, in that HSE's role is not to fund the training or the
provision of worker representatives in private enterprise throughout
Q52 Chairman: Yes, I understand that, but at the same time you have
Ms Hackitt: Yes, it will, and that is why we are doing that.
Q53 Chairman: It is partly about that allocation of resources. There is no doubt that the world of work has changed dramatically between 1974 and 2009.
Ms Hackitt: Absolutely.
Q54 Chairman: There is also no doubt that worker involvement in HSE has plummeted. It has plummeted. It was very high on the agenda in 1974; it is very low on the agenda now in most workplaces. I think that is fair comment. How can you promote, develop, encourage, whatever, that greater worker involvement where, as your own strategy says, the greater the worker involvement, the safer the workplace, when we have the incident that came out a couple of months ago about major blacklisting? So when workers do get involved and engaged in the health and safety agenda, they are blacklisted from employment.
Mr Podger: Yes, which, of course, we are totally opposed to. Let us be very
clear about that. As Miss Begg will know, this issue has also arisen in the
Ms Hackitt: Yes.
Q55 Chairman: The Government consulted on this issue in 1999, again in 2003 and, for whatever reason, they decided to consult again this year, despite the overwhelming evidence that this is happening. Have you responded to that consultation and do you see blacklisting as a health and safety issue?
Mr Podger: We do see blacklisting, if it has as its specific purpose to try and get off site people who raise legitimate concerns about health and safety, as a specific health and safety matter, yes, and that is a view we say now publicly, we have always said this, and it is a view we say within Government as well.
Q56 Chairman: Have you responded?
Mr Podger: That I could not say. I can check but I cannot say. Certainly, if the opportunity arises we will take it, yes, because we also attach the exact importance that this Committee obviously does to that issue.
Q57 Chairman: I am sorry. As I understand it, it is now out to public consultation.
Mr Podger: Yes.
Q58 Chairman: So will you be responding?
Mr Podger: We will respond, certainly.
Chairman: You will respond. That is great. Thank you very much.
Q59 Tom Levitt: I want to turn to the construction industry, first of all, to look at the inspection regime. Can you confirm the number of fixed-term construction inspectors that you are intending to take on, that you have already taken on, and can you say about the level of training which they get for their work, will they be receiving the same training as the permanent inspectors would?
Mr Podger: You will forgive me if I refer to my notes, I do not want to give you the wrong information. As at 31 March of this year we actually had in post 137 full-time equivalent operational construction inspectors and they visit sites on a day-to-day basis. That figure includes 28 trainee inspectors whom we recruited in 2008 and 2009. They are managed by a further 20 people who are their managers but are also inspectors. In addition, we have 20 specialist construction inspectors, and we have 16 who work in the sector and policy areas. We also have 23 health and safety awareness officers. We are, as you are obviously aware, Mr Levitt, additionally recruiting 24 construction inspectors with a construction industry background who will be on two-year fixed contracts, and they are expected to join us in mid-June. They will support us for that period and will be available to carry out site inspections, providing advice and, where necessary, taking formal enforcement action. They will have the training that all our inspectors have and need to undertake those functions. We are also expecting a further ten trainees, permanent trainees, to start in the Construction Division in the autumn.
Q60 Tom Levitt: Thank you. I take it from that they are getting the same training that they would if they were not fixed term but permanent.
Mr Podger: Yes, for what they are going to do. That is an important point. We are clearly not training them to be usable across HSE, but for what they are going to do they will be fully trained.
Levitt: We were told by the trade unions
when we visited
Mr Podger: The intention is to use them essentially on on-site inspection where, as you will appreciate, because they come recently from the construction industry they have a particularly valuable skill for us, but they can be used in enforcement if that should prove necessary.
Q62 Tom Levitt: If you are taking on 24 from mid-June, and it is virtually mid-June now, and you are investing in their training, how long will it take before they are fully-fledged, fully trained and competent to be out in the field?
Mr Podger: Bear in mind that they come to us because they already have a particular degree of knowledge, that is why we have seen a particular advantage in seeking to gain their services in the present period, clearly they do not need to be trained in the rudiments of "this is a construction site and this is what you should look for." What we will do with them, as we would normally do with colleagues who join us, is we will seek to attach them to operational units very quickly and we will do part of their training on the job. We would hope to have them up and running and active in the interests of health and safety pretty quickly.
Q63 Tom Levitt: "Pretty quickly" can be interpreted in a number of ways, particularly if they are only going to be with you for two years. Does "pretty quickly" mean two months?
Mr Podger: Yes. No, no, we will have them attached with colleagues, going out on inspection from a very early point in time, within a week or so of arriving I would imagine would be the normal practice.
Q64 Tom Levitt: Why is it two years? Is that because that takes you to the end of the Spending Review?
Mr Podger: Yes, and I make no bones about that. We are presently in a position where we can afford to take on this extra help in a sector where we are all agreed it is under pressure. We are not in a position to make that commitment beyond the spending period.
Q65 Tom Levitt: But you would wish to.
Mr Podger: What we would actually want to do is to review how this initiative has gone and, let me say, how our initiatives on construction generally have gone because it is wrong to concentrate purely on this one initiative. It seems unlikely to me that we are going to want to reduce our effort in the construction sector, not least because of the point I made earlier, which is when we come out of recession, construction, along with manufacturing industry, is a particular area which is likely to become very stressed in terms of taking on young staff who are potentially rather at risk and where, as we know, there can be rather unfortunate economic incentives to rush things along in a way which can put people's lives ultimately at risk. So we are certainly not looking to downscale our investment in construction if it is at all avoidable.
Q66 Tom Levitt: So at some point quite early on in the next two years you would hopefully be able to tell these 24 people that their jobs may possibly be able to continue after the two-year period?
Mr Podger: Well, we would need to consider with trade union colleagues what we would then do in relation to those particular people, because, as I say, first of all, there is the issue, is taking people temporarily like this seen to have worked. It has been tried before, I may say, and in many people's view was successful. We would need to consider that. Secondly, we would also, of course, have to consider whether we want to continue with these particular colleagues or whether we are looking to do another recruitment, which is another issue. There is also the question of whether those who are recruited on this temporary contract wish to join HSE permanently, in which case they would go through the same recruitment as everybody else. It does not necessarily follow that we would seek to extend these particular contracts beyond two years but it may certainly be the case, and was when this was previously tried, that people will seek to join HSE permanently and, as I understand it, some very successful recruitment was done by that channel.
Q67 Tom Levitt: So, irrespective of whether it is those particular individuals and those particular contracts, nevertheless come the next spending round you would be making a case for a bigger complement of construction inspectors?
Mr Podger: We would be making a case to actually try and keep our current construction industry resources, yes.
Q68 Tom Levitt: Or is there a case for improving that?
Mr Podger: As I said to you, that, I think, is what we will have to look at in the light of what has been achieved. That, as you appreciate, is a perpetual and proper challenge to us.
Q69 Tom Levitt: Let me change the focus slightly. Looking at the area of refurbishment, one in every five sites has failed health and safety checks, according to your inspectors. Would it be helpful if health and safety requirements were incorporated into the Building Regulations so as to capture the refurbishment sector?
Ms Hackitt: As I said earlier, we think that has merits. We have discussed that recently with a number of other people and certainly it is something that we want to look at and look at the practicalities of doing, because, yes, there is a logic to doing it.
Q70 Tom Levitt: UCATT have told us that those workers who work in smaller construction businesses are more at risk of death, considerably more, than those working in larger companies. Is that your inspectors' conclusions as well?
Mr Podger: Yes. There is no doubt that in general the risks are greater in the small sector, though I think we must equally recognise that there are still problems in the large companies, I do not think we should give them a wholly clean bill of health. Certainly people generally in the large end of the construction industry do have systems in place, do understand what they are doing. There is a more serious problem without a doubt in refurbishment which you describe, and, indeed, one of the reasons why we were looking to take on temporary additional construction inspectors was precisely that they could be active in this area.
Q71 Tom Levitt: To continue the issue of fatalities, the Construction Deaths Inquiry, in which I believe you have been involved, was due to have reported by now but I think it may be due to report imminently. Perhaps you could tell us when you think it is going to report and what your involvement has been in that inquiry.
Mr Podger: The fatals inquiry was set up by the Secretary of State, not by us. We have indeed provided the secretariat for the fatals inquiry from within HSE staff and a number of us, Geoffrey and I included, have been interviewed by Rita Donaghy and her team and have given them our views and we know that they have talked to a great number of stakeholders in coming to this point. Yes, Rita did ask for an extension to the period that she was originally given to do this. Our understanding is that she will report to the Secretary of State later this month. We have had interim discussions with her about the direction things are taking, but as yet we have not seen the final recommendations and would not expect to see them before the Secretary of State and others see them.
Q72 Tom Levitt: That seems to imply you are satisfied it has been a fully independent inquiry.
Ms Hackitt: Yes.
Q73 Tom Levitt: UCATT have, as you know, put in a number of freedom of information requests about what they regard as flaws in the recording of construction fatalities, particularly insofar as they relate to the Construction Industry Scheme. Do you think that the recording of fatalities as employee deaths, even when people have CIS status, means there is a risk of inadvertently hiding the disproportionate health and safety risks of people who are bogusly self-employed?
Mr Podger: That is not an easy question to answer off the cuff, I think is the answer.
Q74 Chairman: That is why he asked it.
Mr Podger: Yes, indeed. I feel I am going to fail totally in doing so. I think the honest answer is that it is clear that the variety of subcontractors and people of different employment status on building sites is inherently a factor which makes it more difficult to grip what is going on and inherently more difficult to grip what is going on from the point of health and safety, and that has always been our view. What we have tried to do, and, as I say, we have tried to work in harmony with UCATT over this, is get the best data we can and that remains our position. I am not, as you will have gathered, particularly aware of this one issue and I cannot therefore honestly answer your question. As I say, our concern is, I hope, the same as UCATT's, which is to get the best data that we can and we remain ready to co-operate in any exercise to that effect.
Q75 Tom Levitt: But it seems clear that there are cases, and the one that has been drawn to our attention is that of a 20-year old "apprentice" scaffolder who fell to his death in April last year; he died a day later, and was very clearly registered under CIS but his name did not come up on the list of CIS deaths which your figures portrayed. That could be because the data which you have access to is simply not reliable, and if it is that unreliable then should we be looking at reforming the way that CIS registration is administered?
Mr Podger: First of all, a death by definition would become reported to us. People's employment status is completely irrelevant in relation to that, and I think that is a very important point to make. It would become known to us because even if it was not reported to us, as it legally should be, it would become known to us from the emergency services, it would become known to us through trade unions on the site, so there is no reason at all to think that there are deaths which do not become known to us. I think I must make that quite clear.
Q76 Tom Levitt: It was the CIS status that was clearly not known to you in this case.
Mr Podger: Yes, but, with no disrespect to UCATT, the key point from our point of view is irrespective of what people's status is or whether they claim a status which they do not have they are an extremely serious issue if they die and it is desperately important from our point of view to get to the bottom of it and take whatever action is necessary. So from our perspective, which is perhaps a slightly different one from UCATT's, we would have the data we need and we would act on it.
Q77 Tom Levitt: Looking at the CIS independently, insofar as it impinges on your work and your statistics and the risks that are associated with people who are registered under CIS or otherwise, are there grounds for reforming CIS or simply scrapping your attempts to try and link CIS registration to fatality statistics?
Mr Podger: The honest truth is that it is a scheme which is, as you know, administered by Revenue & Customs; it is not administered by us, and therefore information may come out of it which is of interest, but it is not, as I have said, a fundamental scheme from our point of view and we are not the body that is responsible for it.
Q78 Mr Heald: In terms of your prosecutions and investigations, does it make any difference whether the employee is an employee or simply a worker? Do you see what I mean?
Mr Podger: Yes. There are obviously issues as to whether you technically meet the requirements of the Health and Safety at Work Act, you have to have some responsibility, but within that, no, it normally would not. That is why I say that if we had to take enforcement action in relation to a death, which of course we do very frequently, the precise nature of the employment status is unlikely to be a very relevant factor.
Q79 Tom Levitt: But someone who is bogusly self-employed is at greater risk, even if not of having an accident or a fatality, of being covered and assisted were they or their family to suffer that.
Mr Podger: Sorry; I did not understand the second part of your question.
Q80 Tom Levitt: I am trying to get at the CIS status, the bogus self-employment status, the person who is to all intents and purposes an employee and should have the rights of cover, insurance and everything else, support, but does not have that because they are posing as a self-employed person with, therefore, less cover and less assistance. Were they to become injured or suffer a fatality then clearly that worker is at a greater risk of suffering financial damage, for example, as a result of an accident if they are bogusly self-employed, so is there a health and safety argument for reducing the ability of people to be bogusly self-employed when really they should be treated as employees?
Mr Podger: I think we would say that what there is is a very strong health and safety argument, which is that the people who are running construction sites have to have control over the totality of the people who are there irrespective of what their technical employment status is, which is just another way of looking at it. That is where we come from because, with respect, you cannot alter by a magic wand the different employment statuses people now have on construction sites. What we can do, and do, is insist that the people who run these sites have to be fully conscious of all the people who are on their site and take proper responsibility for the running of the site in that light.
Q81 Mr Heald: Of course, if you are the family or dependant of a worker who is killed at work and you want to sue the employer for a poor system of work and safety, et cetera, you would want to be able to establish in your civil action that you were an employee if you could, because obviously it would be a great help legally.
Mr Podger: It would be a great advantage, yes.
Q82 Mr Heald: You would also, I think, hope that the Health and Safety Executive might prosecute the company under the Health and Safety at Work Act because you could then plead that in your action, that there had been a successful prosecution. Do you think these issues affect the way in which your inspectors record these CIS cases in any way at all? They are not trying to be helpful, are they, for the civil action by saying, "He was an employee", or something like that?
Mr Podger: No, and it would be improper for them to do so, for obvious reasons. We are public servants. It is not for people to falsify data even to help people.
Q83 Mr Heald: No, I am not suggesting there would be a falsification, because if the person had all the badges of employment and this was a bogus arrangement that the employer had put in place then that would be perfectly understandable.
Mr Podger: Our inspectors are under the same obligation we all are as public servants, which is to act properly. That is not to say they will not make a mistake; that, of course, is possible, for the reasons that I have been explaining. It may not be possible to easily determine what the employment status was and they may inadvertently make a mistake but they would not, as it were, do so with a view to influencing any civil action, which I think was your question.
Q84 Mr Heald: It is just something UCATT have said: "Recording a worker under the correct, directly employed status brings an important advantage, being that it then tends to be easier for the dependants to receive compensation".
Mr Podger: As I say, our view is that we have to be objective. I do not say we are error-free but that is our objective, to be objective in how we record it.
Q85 Chairman: Can I jump back briefly to the 24 fixed-term inspectors you have recruited? Is there any common trait in their background?
Mr Podger: Forgive me for saying something which may be obvious, but their background is that they do all come from the construction industry and that was our purpose.
Q86 Chairman: The construction industry is everything from a junior apprentice to -----
Mr Podger: Let me say first of all, and it may be helpful to the Committee, that we did actually have hundreds of people applying for these posts and, as you will appreciate, we have taken 24. My colleagues who were involved in the selection, who obviously are the people who come from this background, have clearly sought out the people who they think by virtue of what their experience is will be of most use to us in terms of enforcing on sites and inspecting sites. As I understand it, there is within that quite a wide range of people.
Q87 Chairman: Just to be really naughty, do you know if any of them have ever been blacklisted?
Mr Podger: I do not.
Q88 Chairman: Can we move on to the Nuclear Directorate? There has been a problem here for a long time, has there not, but we go back to when Tim Stone was commissioned last year to look at this. We have now got a situation where a legislative reform order is being used to create the statutory corporation rather than primary legislation. Is there a particular reason for that, do you know?
Mr Podger: First of all I should say that it is, as I understand it, still a matter for ultimate ministerial decision how they choose to proceed. My understanding at the moment is the same as yours, Chairman, which is that they propose to proceed by legislative reform order. I think the reason for doing that is that the proposals are not perceived as contentious and are perceived as continuing with all the best aspects and the independence of the regulation that we currently have, but moving to a status which will have some advantages in the new nuclear build climate, so I think it is a matter that it has not been perceived, assuming ministers continue this course, as controversial enough to warrant primary legislation.
Q89 Chairman: I am not trying to create a problem where there is not one, but one of the dangers when there is no contention is that the detail gets missed. Let us just do it bit-by-bit. What will change in terms of the Government's arrangements for the Nuclear Inspectorate?
Mr Podger: Again, I should say that final decisions have not been taken by ministers but I am quite prepared to share with the Committee, if you are happy, what my understanding is of what ministers are likely to agree. In essence, what would happen under the legislative reform order which is currently being considered is that there would be a separate body which might have the status of a statutory corporation, and the Civil Aviation Authority is an analogous such body in the regulatory field which is well established and works well, I think, to everyone's general feeling, and that it would be, as the HSE Board is, tripartite in nature but it would also have some executive staff on it. Basically, what it would do would be to be able to give the level of attention which civil nuclear new build will need from a wider group of public-spirited and properly recruited individuals by way of governance. It would be, we think, likely to be entirely financially independent. It would look after matters relating to efficiency, but it would operate in terms of safety and safety regulation within the overall framework of the Health and Safety Executive, so we would not see a splitting off in some way of nuclear safety policy, and there would be likely to be a degree of intermingling between the HSE Board and this body. Those are essentially the proposals which are currently being discussed.
Q90 Chairman: But you do envisage that there will be a separate board?
Mr Podger: Yes, we do.
Q91 Chairman: Would HSE be represented on that board?
Mr Podger: Yes, that is what we envisage, and vice versa.
Q92 Chairman: As always, there is an issue about the status of employees.
Mr Podger: Indeed.
Q93 Chairman: Are they going to remain as civil servants?
Mr Podger: The view is taken that those nuclear inspectors who will transfer to the new body will not remain civil servants. It is important to understand, as is part of Dr Stone's review, the need to be able to pay comparable salaries to those which are available elsewhere in the nuclear industry, and it is certainly thought that this will be facilitated by those people no longer remaining civil servants. We are in discussions with HSE trade union colleagues in relation to the status of other staff. We certainly envisage that in relation to HSE administrative and clerical staff, who will initially move to the Authority, that they will be secondees and, therefore, they will ultimately have a choice over time as to whether they wish to join the new body permanently or return to us in HSE. There are some other specialist staff who are very important but who are not nuclear inspectors whose status we need to further consider with our trade union colleagues, and those discussions are going on at the moment.
Q94 Chairman: In some ways I suppose you could say that the staff want it both ways but in this total remuneration package one of the attractions is, of course, the Civil Service pension scheme.
Mr Podger: Indeed.
Q95 Chairman: Is it the case that on the model you are envisaging they would no longer be entitled to be in that, or would the new body have to establish a comparable scheme and if it does the costs will go through the roof because of the costs of establishing as against maintaining what is already there, and is the industry prepared to fund that cost?
Mr Podger: These are indeed all rather important questions which we are considering internally at the moment.
Q96 Chairman: All questions the Select Committee Chairman asks are important.
Mr Podger: Indeed, absolutely, Chairman, but this one is peculiarly important and topical. I can say quite genuinely we are engaged in that discussion. There is as yet no outcome, but there will be an outcome.
Q97 Chairman: What sort of timescale do you think we are in for bringing this to a conclusion?
Mr Podger: In terms of specifically the pensions issue?
Q98 Chairman: No.
Mr Podger: Overall?
Ms Hackitt: Setting up the new organisation.
Mr Podger: I think probably the Government would wish to have a consultative paper fairly soon on the LRO. This month or next would seem the likely timeframe for that. Obviously, then we have to wait and see what the reaction is to that, and while the principles are being consulted on the technical but very important issues about pensions which you have just raised we shall continue to discuss with colleagues within Government and with our HSE trade union colleagues.
Q99 Chairman: At some appropriate time in the future do you think you will be able to drop us a line and say how all these things are starting to come together?
Mr Podger: Indeed. We would welcome doing that.
Q100 Chairman: As I say, when you think the time is right.
Mr Podger: Yes.
Chairman: Okay. Thank you very much. It has been a lively session as always. You will understand the Committee's ongoing interest and concern in this and the dialogue will continue. Thank you very much for today.