Health and Safety in Scotland

CORRECTED TRANSCRIPT OF ORAL EVIDENCE    To be published as HC 1344-v

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

 SCOTTISH AFFAIRS ommittee

HEALTH AND SAFETY IN SCOTLAND  

TUESDAY 29 NOVEMBER 2011

ALEX BOTHA, LAURA CAMERON and DR KAREN McDonnell

Evidence heard in  Public Questions  447 - 581

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Oral Evidence

Taken before the  Scottish Affairs Committee

on  Tuesday 29 November 2011

Members present:

 Mr Ian Davidson (Chair)

Graeme Morrice

Simon Reevell

Lindsay Roy

 ________________

 Examination of Witnesses

Witnesses: Alex Botha, Chief Executive, British Safety Council, Laura Cameron, Partner, McGrigors LLP, and Dr Karen McDonnell, Head of The Royal Society for the Prevention of Accidents (RoSPA) Scotland, gave evidence.

Q447 Chair: Could I welcome all of you to this meeting of the Scottish Affairs Select Committee? As you are aware, we are having an investigation into health and safety in Scotland. It would be helpful if you would tell us who you are and why you are here.

Alex Botha: My name is Alex Botha. I am the chief executive of the British Safety Council. We are a global health and safety charity representing about 8,000 corporate members, of whom 600 are operating or based in Scotland. We did a survey of their views on the issues facing this inquiry, and we are representing that here today.

Laura Cameron: Good afternoon. I am Laura Cameron. I am a partner with the law firm of McGrigors. I have been working in the area of health and safety law for about 15 years, and I am here with the British Safety Council just to assist the inquiry, in so far as I am able, with any issues in relation to the enforcement of health and safety law in Scotland.

Dr McDonnell: Good afternoon. I am Dr Karen McDonnell. I am head of RoSPA in Scotland. We are a membership-based UK charity registered in Scotland whose mission is to save lives and reduce injuries at work, on the road, in the home, and in water and leisure activities, through safety education. I am also a current vice-president of IOSH.

Q448 Chair: Thank you. As you may be aware, we asked the National Audit Office to conduct an inquiry into health and safety in Scotland, and it demonstrated that the Scottish figures were worse than those elsewhere. Two sectors-construction and manufacturing-had a significantly higher rate of major injuries in Scotland than in England and Wales. Do you have any explanation for that?

Alex Botha: I have reviewed the report and also seen the HSE submission on that. From our perspective, we have nothing further to add to the reasons behind that. A lot of our members are based or working in the construction sector in Scotland and in the UK, probably 20%. The feedback from the survey and certainly the broader groups we have is not that there is any particular reason we are aware of outside what has been notified in the report.

Dr McDonnell: In terms of the number of reported fatalities and major injuries being higher in Scotland in comparison with England and Wales, we agree that it is largely attributable to work force composition. There is a higher proportion of people in agriculture and perhaps more manual workers in the construction industry. It is documented that there is a difference in working practices, types of activity and also accessibility to emergency services within the Scottish context.

Q449 Chair: But there is nothing in addition to the report produced by the NAO that you feel you can contribute to the discussion.

Alex Botha: No.

Dr McDonnell: No.

Q450 Lindsay Roy: The number of major injury cases that HSE have investigated in Scotland has reduced from 11% in 2007-08 to 6% in 2009-10. HSE have admitted that as the number of investigations drop so do the number of prosecutions. Is it likely that the number of major injury investigations will reduce further? If so, what is the likely impact on prosecutions and the perceptions of the rigour with which health and safety is conducted?

Alex Botha: I noted the reduction by half of the investigations with a degree of concern. Clearly, our concern is that that could be an indication that the budget cuts are reducing the ability of the HSE to investigate and contribute to prosecutions. That said, it is a concern as opposed to being tangible proof that it is happening in practice. We share the concern. It might be early days yet from our perspective to make a call on whether that trend will continue, but it is certainly of concern to the British Safety Council and our members.

Q451 Lindsay Roy: Do you have any evidence that the number of prosecutions is still declining? What is the pattern?

Laura Cameron: I don’t have the number, other than the figures already stated in the report. To make the obvious comment, the number of prosecutions is directly linked to the number of reports made by the HSE. For the most part-certainly, I think the figures support it-the Crown Prosecution Service will instigate proceedings on the back of a recommendation from the HSE. So the number of prosecutions is linked to the number of investigations.

Q452 Lindsay Roy: But the key question is: if there is a continuing number of major injuries, why is the number of investigations reducing?

Alex Botha: From our perspective, it is very difficult to add anything, apart from what the HSE have said so far on that. As I said, in surveying our members and posing this question, there was a concern, but the underlying reasons were not articulated, and certainly we are not in a position to articulate those reasons either.

Q453 Lindsay Roy: Is it the case that there has been a focus on certain high-risk industries where major injuries have occurred?

Alex Botha: I am not aware of that.

Q454 Lindsay Roy: Can we find that data? Is it potentially available to this Committee?

Dr McDonnell: Perhaps the only thing I can add to this conversation is that the most recent HSE board paper in Scotland fed back on the very positive example of partnership working between the Crown Office and Procurator Fiscal Service and HSE. It was stated in that paper that there was a higher proportion of guilty pleas going through this particular route and more convictions being achieved from the number of cases taken. It also identified that the resultant fines were more proportionate to the offence, and more effort was being made in securing media publicity and stronger communication about the damage and impact of prosecution. Therefore, for those going through that process it has been a more positive outcome.

Q455 Lindsay Roy: That is helpful. It would also be helpful if you could make available to the Committee any data you have. Do you agree with the notion or the perception that people who live in areas of high unemployment have to take what jobs are available and this leaves them vulnerable to unscrupulous employers or high-risk occupations?

Alex Botha: I have read that perception being put forth in the media. From our perspective and interaction with our members-to be clear, 40% are small to medium-size enterprises and about 60% are large corporate entities-the members we work with are proactive in terms of educating their work force and providing adequate health and safety practices and management. We don’t have that experience with our members, but I have certainly read the perceptions as well.

Q456 Lindsay Roy: Is one area of investigation that, if you go into areas with 20% to 25% unemployment and have a look at that, you can see if that is indeed the case?

Alex Botha: It is probably worth looking at that in a bit more detail, but at this stage I have nothing further to add.

Q457 Chair: To be clear, your members are self-selecting.

Alex Botha: They are indeed; that is correct.

Q458 Chair: Therefore, it is a bit like bad boys’ and good boys’ youth clubs, is it not?

Alex Botha: Absolutely.

Q459 Chair: Therefore, your members, presumably, are not the problem.

Alex Botha: Indeed. We have 8,000 members who are, as you said, self-selecting and are committed to good health and safety practices. Apart from that, as an organisation we are also committed to work with and share the best practice particularly of those members in broader societal terms. As an organisation we try to share that information, but focusing that in appropriate areas is very important as well. There is something about understanding where the need and issue is on which we could possibly do a little more work to target our information-sharing.

Q460 Lindsay Roy: You as organisations can make recommendations in relation to health and safety.

Alex Botha: Yes.

Q461 Lindsay Roy: And that is possibly a recommendation you might follow through.

Alex Botha: Yes.

Dr McDonnell: As to regional unemployment and social deprivation, there is certainly evidence we can provide to you from a RoSPA standpoint in relation to accidents and injuries in the home, and the general community safety angle. They probably map well against this type of data.

Q462 Simon Reevell: Can I go back to something Mr Roy mentioned in the first part of his questioning? Am I right in thinking that, in Scotland, there is a greater number of serious injuries and a declining number of investigations, and the investigations tend to lead more to cases where there are pleas of guilty? That would suggest to me that the only cases being looked at are the ones that are easy to deal with, which is why there is a plea of guilty. The deterrent effect of prosecuting is being removed, because there is less chance of being prosecuted, because the number of investigations is falling, so it is not much of a surprise if the number of injuries goes up. That seems to be a link in my mind. My area of practice is not dissimilar to yours. I wonder whether you would agree that those three factors may be linked in that way.

Laura Cameron: I don’t get a sense that there is a general acceptance that you are unlikely to be prosecuted if you have a serious accident. There is a perception that, if you have a serious accident, you will have to bear the consequences of that, and there is an expectation that you will be prosecuted. I am conscious of the HSE conducting investigations in those circumstances.

Q463 Simon Reevell: To be clear, the fact that the number of investigations has almost halved has not had any deterrent effect on the existence of investigations and prosecutions?

Laura Cameron: No. I don’t get a sense that people are starting to become relaxed, if you want to put it that way, about the possibility of being prosecuted. I am afraid I cannot offer any assistance on the reasons why the number of investigations has dropped, but from where I am sitting I don’t have a sense that people don’t expect to be prosecuted; in fact, it is quite the opposite. If they have a serious accident, they expect, quite rightly, to be prosecuted on the back of it.

Q464 Simon Reevell: So, whatever the reason is for the number of injuries being higher, it is unrelated to the level of HSE activity in terms of investigation?

Laura Cameron: Certainly, that is a conclusion you can draw from that.

Q465 Simon Reevell: Would you agree with that?

Dr McDonnell: It makes sense to follow the argument down that road.

Q466 Chair: To be clear about the relationship between accidents and prosecutions and therefore guilty pleas, as I understand it, the figures for prosecutions in Scotland are much lower than in England and Wales. In these circumstances, if all other things are equal, presumably, there will be events prosecuted in England and Wales that are not prosecuted in Scotland. Therefore, the bar for prosecution in Scotland is higher, and you would expect a higher percentage of either guilty pleas or findings, would you not? There are probably cases where people would be found guilty in England and Wales, if they happened there, which are not being prosecuted at all in Scotland. Is that correct?

Laura Cameron: I get a sense, and I think the statistics you have support this, that the prosecutions are instigated almost directly in line with the number of HSE reports submitted to the Crown Prosecution Service. There is a slight drop in numbers as between how many are reported and how many are prosecuted, but for the vast majority, as I understand it, when a report is submitted by the HSE, the specialist health and safety division will instigate proceedings on the back of that. Again, it comes back to the point about how many reports are then submitted to the Fiscal service by the HSE-I am just going on the figures I have read in the written submissions-rather than a reluctance by the specialist health and safety division to instigate proceedings. I get a sense that there are a few cases where they do not instigate proceedings and they will have reasons for that, but I don’t get a sense that they are inundated with reports and they just cherry-pick certain cases to prosecute. The figures support the suggestion that the vast majority are prosecuted when reports are received.

Q467 Chair: They only investigate open goals, as it were, when they know they are likely to get a prosecution coming out of it.

Laura Cameron: I am really not in a position to comment. It is probably better for the HSE to comment on that.

Q468 Chair: With respect, they are not here and you are. In terms of the logic of the position, it is not an unreasonable assumption for us to make.

Laura Cameron: The HSE have their own enforcement policy, and presumably they follow that. That dictates in what circumstances they will investigate a serious incident and report it for prosecution. If they follow their policy, they ought to be looking at the various factors within that policy.

Q469 Simon Reevell: Perhaps I can help here. Of the cases you see, what percentage is contested and what percentage pleads?

Laura Cameron: The vast majority will plead. We may come on to talk about the specialist health and safety prosecution division shortly, but I think that is a by-product of that division. That is a helpful development.

Q470 Simon Reevell: But, if the vast majority will plead, is not Mr Davidson right that that tends to suggest they are investigating the open goals and not the difficult cases?

Laura Cameron: The health and safety cases as a general rule are very difficult to defend. The onus in a health and safety case falls on the defence to prove the defence. The onus on the defence is to prove that it was not reasonably practicable to do more than what was done to avoid the accident. Faced with an argument like that, where the onus is on you to prove you could not have done anything more that was reasonably practicable to avoid the offence, it is quite a hard test to satisfy in any defence, because, almost inevitably, something could perhaps have been done.

Q471 Simon Reevell: But, if most cases are dealt with by pleas and a small number are contested, that would suggest that the easy cases are always prosecuted and only the easier strata of the more difficult cases are, because that is why you have a large number of guilty pleas and a small number of contested trials. If you had an even balance of guilty pleas and contested trials, that would support the idea that there is a lower threshold for deciding what comes to court and what is prosecuted. If you are looking at cases that are likely pleas, you will have mainly guilty pleas and a small number of contested cases.

Laura Cameron: You are absolutely right. I simply know that it is quite a hard onus to shift when you are sitting in the defence of a health and safety prosecution. It is not something you can’t ever overcome, but it is actually quite difficult. Are you saying that, if there were more reports to the prosecution, and more prosecutions, there might well be more guilty pleas coming out of that?

Q472 Chair: What we are trying to clarify just now-we will pursue this elsewhere later on-is that the evidence we have shows that only 6.4% of major injuries resulted in a prosecution in Scotland, compared with 10.4% for Britain as a whole. Similarly, the evidence from Woolfson and Beck-of whom you are probably aware-is that one in eight workplace deaths resulted in a prosecution in Scotland, compared with one in five for Britain. The implication of all of that is that, if the prosecutions were conducted on the same basis, there would be many more guilty pleas or findings.

Laura Cameron: I come back to the point that the prosecutions are directly linked to the number of investigation reports that are submitted to the Crown.

Q473 Chair: I think we understand that. Perhaps I may pursue slightly further the question Lindsay asked about areas of deprivation. While I appreciate that your members are only the good guys, so to speak-those who are interested in this-there must be, if not scientific, at least anecdotal views among your membership about what is happening, what the competition are doing, and so on and so forth. We want to seek a little clarification on this. Arising from the plastics explosion in Glasgow, the STUC took the view that there were people working there who, because they were in areas of deprivation, felt they had no choice but to continue working, even though the place was unsafe. What we are trying to clarify is whether or not, from your understanding of the dialogue with your members, you believe that is a much wider area of difficulty.

Alex Botha: It is going to be difficult for me to comment specifically on the Scottish area, but I can provide a little context. In a broader sense, what we recognise is that very often it is the young people coming into the workplace who bear the brunt of bad practices, so to speak. As an organisation, we are working with young people not in employment, education or training, as well as young people who are about to leave school. We provide 110,000 free qualifications in health and safety on a yearly basis, and in Scotland as well. We have targeted that NEET group for exactly that reason. We give them the kind of skills to be able to stand up, as far as possible, and be aware of their rights against potential rogue employers.

Q474 Chair: Can I just clarify the point about "standing up"? If you have been unemployed for a year and you have just managed to get a job where there are risks, your willingness to stand up is somewhat diminished if you are in an area of high unemployment, misery and poverty, isn’t it?

Alex Botha: Of course it is, and that is always the challenge. The application of your rights is very often quite difficult when faced with someone who is also potentially abusing your right. Of course it is, and we are aware of that factor.

Q475 Chair: Do you ever have feedback from the youngsters you train and send out into the world, indicating, "Look, I’m in a pretty difficult position. I’m being asked to do things that are contrary to your training, but if I don’t do them I’ll get sacked and lose benefit for such and such a period"?

Alex Botha: We have had anecdotal feedback. We have done some impact assessments of the education we provide. On the whole, we have found that 90% of the youngsters we work with feel more empowered to speak up in the workplace. There could be a disconnect in terms of how that works in practice, but it seems in practice as if it works and they are equipped with the right skills.

Q476 Chair: To be clear, at what stage do they feel empowered? Is that when they leave you, or do you see them subsequently? I completely understand the point that they might feel enthused when they leave you, but as soon as they walk into an employer and find that either there is no union or others have been sacked for complaining, that feeling dissipates.

Alex Botha: We don’t have a lot of information once they are in the workplace. It is focused predominantly on feedback when moving into as opposed to being in the workplace.

Q477 Chair: Dr McDonnell, do you have anything to add to all of this?

Dr McDonnell: I was just sitting and reflecting that, within the Scottish context, we also have the Scottish Centre for Healthy Working Lives, which provides free advice and support that is accessible to all, certainly in relation to people having concerns about how their organisation is moving forward. They are able to use them as a sounding board. There are perhaps more points of access in the Scottish context than in the rest of the UK.

Q478 Chair: More points of access to whom?

Dr McDonnell: Healthy Working Lives have a network of advisers across Scotland who work locally with micro and small businesses.

Q479 Chair: I must confess I had never heard of that organisation until we started this inquiry, so youngsters in an area of deprivation who are working for a bad employer are hardly likely to know of their existence, or how to access them or obtain support, are they?

Dr McDonnell: That is entirely correct, but mechanisms can be used going forward through the partnership network that exists in Scotland to highlight awareness of that particular organisation. They have just undertaken an SME study-a small to medium-size enterprise study-towards the small end, to identify how they can engage with them more effectively. We are fortunate to have that there; it is just that we need to raise awareness of it and the way forward.

Chair: Given the present economic circumstances, you can understand that this is quite a substantial area of concern to us. If, after you have gone, you reflect and wish you had said such and such, or somebody gives you a note later on, it would be helpful if you could let us know, because clearly it is something that we will be following through.

Q480 Graeme Morrice: Do the Health and Safety Executive have sufficient good quality data on accident rates in Scotland either fully to understand where the problems lie or to monitor the effectiveness of their own work?

Alex Botha: Reflecting on what is in the reports, decent information is available, but clearly some of it has to be triangulated, in a sense. For example, some of the RIDDOR reporting needs to be triangulated, so to speak, by the Labour Force Surveys that also take place. There is no one ultimate source of information and statistics available, but by using a combination of various sources there is a decent and consistent picture. From our perspective, information has been gathered over a period of time, and at least that consistency of methodology is in place. That is quite helpful at least in understanding trends. From our perspective, there is a decent set of information, albeit you can always have better information.

Q481 Graeme Morrice: You reckon that in general terms there is enough information to provide you with a pattern and trends.

Alex Botha: Yes.

Q482 Graeme Morrice: But do you think there is any specific information that is perhaps not there that should be drawn together? Do you think there is any kind of Scottish information, in particular, that would be helpful?

Alex Botha: No.

Q483 Graeme Morrice: Or anything in relation to the priority sectors?

Alex Botha: Maybe that is a point worth expanding on. We operate in four specific sectors as an organisation: construction, manufacturing, transport, and energy. Very often, industry groupings in those sectors-for example, the energy sector, and particularly, oil and gas-have specific health and safety statistics and information that is not necessarily publicly available. In the past we have found that some of that information can give a richer picture. There is quite possibly a scope to expand in some of those critical sectors the information available which the organisations themselves are gathering that is not necessarily publicly available.

Q484 Chair: When you say "a richer picture", do you mean a fuller truth? Is that what you mean?

Alex Botha: If there is an accident, it might be understanding where exactly it took place and the circumstances surrounding it. I would not necessarily say it is a fuller truth, but certainly it is a greater understanding of all the information around that.

Dr McDonnell: Possibly there is an opportunity to glean more information from the data generated by people seeking treatment from the NHS. We probably don’t learn as much as we could. In the first part of this meeting we have been discussing fatalities and major injuries, but there is also this huge population of other occupational health-related issues out there. If there was a tie-up between the NHS and fit notes and so on, maybe we would be able to glean a clearer picture of the potential impact on, and the cost to, the public health system. I believe that is the type of message that starts to turn people’s heads.

Q485 Graeme Morrice: Just pursuing that line in terms of gleaning information from the NHS, I think you mentioned in your evidence that you were looking at a pilot to source such data from the NHS. Can you tell us a wee bit more about that and whether you think there may be any kind of obstacles to progressing that pilot?

Dr McDonnell: In the immediate short term it is something that we have been discussing in great detail with a number of different people. I sit on the committee of the Partnership on Health and Safety in Scotland. One of our members of the partnership is directly involved with local authorities. They have just purchased a new occupational health provider, so we were interested in working with them to try to assess what a good occupational health provider looks like in order that that can be more widely shared.

Q486 Graeme Morrice: So the aspect of a pilot has been discussed at the partnership.

Dr McDonnell: Yes.

Q487 Graeme Morrice: Are you aware of what happens in other countries in relation to collecting accident statistics using data from the health service?

Dr McDonnell: I know that it happens in other countries. RoSPA have a BNFL scholarship which this year is funding a research project to evaluate accident data collection at a kiosk in an A and E versus what is done verbally by interview, looking at how much information we can glean from one loss-causing event. I can provide further detail on that, should you wish.

Q488 Graeme Morrice: That would be useful. Let me finish with you in relation to data from driving-related accidents. Do you think health and safety statistics should include road traffic accidents that occur in the course of someone’s work?

Dr McDonnell: I think it is unlikely there would be any radical change in RIDDOR in the immediate short term to make it reportable under RIDDOR. Road traffic accidents are essentially managed via a police route. In the evidence I have provided to you, I mentioned an alliance called ScORSA-the Scottish Occupational Road Safety Alliance. That alliance is chaired by RoSPA and brings together Road Safety Scotland and ACPO, which is the Association of Chief Police Officers, unions, professional bodies and the HSE. What we are exploring at the moment is the possibility of using Stats19, a form that the police use, to record the events at a point of incident. There is an opportunity on the form to record what they call journey purpose. There is a lot happening up north just now-they are going to the single police force-but we are endeavouring to see if we can pilot that in a small proportion, in one police force area, to find out what we can glean from Stats19 in the first instance that could be used as additional evidence to substantiate any change.

Q489 Graeme Morrice: That is interesting. You are saying that those involved in this process would find gleaning that information quite a useful thing to do. It is something that should be supported, but it is how you do that.

Dr McDonnell: People round the table are very supportive of it. It is the actual machinery and how we make that happen, but round the table at the alliance it is viewed as something we can explore and can do, as opposed to something that perhaps we cannot change.

Graeme Morrice: Thanks. That’s great.

Q490 Chair: Dr McDonnell, perhaps I may return to the point about road traffic. Presumably, with modern technology it should be relatively easy to have those figures assessed and brought out. People have raised that with us on a number of occasions when we have met unions in particular. What are the main obstructions to doing that at the moment? Why is it not happening if it is such a good idea?

Dr McDonnell: I am not suggesting it is not happening, but what we wanted to do was have a focus on it to make sure it does happen and it is recorded, and we use the stats in a different way. I do not think they have been used in that way previously.

Q491 Chair: Would that tend to indicate that it has not been done?

Dr McDonnell: It is the analysis of it.

Q492 Chair: The analysis has not been done and, therefore, accident at work statistics under-record it quite substantially because they don’t include all the road accident figures.

Dr McDonnell: They don’t include road accident figures, no.

Q493 Chair: What I am trying to clarify is why that has not been done before. The methodology is there, isn’t it?

Dr McDonnell: But they are two different things. We are talking about RIDDOR on the one hand and Stats19 on the other. They are not the same.

Q494 Chair: We are getting lost in jargon. This is a bit inconvenient, because I cannot actually see you. Would it be possible for the witness to move slightly this way? That’s better. Just run that past me again, because I am not sure I understand it. If there are accidents in the course of employment and someone is killed, are you saying that is not recorded at all in the accident statistics?

Dr McDonnell: It is recorded, but driving at work-

Q495 Chair: So, if a van driver is delivering goods, or a commercial traveller is travelling, and they are killed in the course of their work, that is not recorded as an accident statistic.

Dr McDonnell: I would say that perhaps it is not always obvious who is driving for work. That is perhaps where the clarification is.

Q496 Chair: I don’t quite understand that. If their job is as a commercial traveller, or a van delivery driver, and they are killed during working hours driving their works van, I would have thought that was fairly clear. None of that is collected at the moment and attributed to work-related accidents.

Dr McDonnell: I think I am right in saying that RIDDOR does not require the reporting of that.

Q497 Lindsay Roy: The key thing is that I think that should be done given it is in the context of the work relationship.

Dr McDonnell: Yes, but at the moment it is not reported under RIDDOR.

Q498 Chair: Just clarify for me why that is not done. It can be done, can’t it?

Dr McDonnell: It is not one of the prescribed reporting requirements at the moment, so that is why it is not reportable.

Q499 Chair: But it could be.

Dr McDonnell: There is a list.

Q500 Chair: That can be changed easily enough, can’t it? It is changeable.

Dr McDonnell: Yes, it is changeable, but the comment I made right at the very start of this was that RIDDOR has just been looked at, so I don’t know how soon it will be looked at again.

Q501 Chair: That is not our problem in a sense.

Dr McDonnell: Yes, absolutely.

Chair: We are just identifying what we think is wrong, so that is bureaucracy’s problem. At the moment, the health and safety statistics grossly underestimate the number of accidents because they don’t include road issues.

Q502 Lindsay Roy: Wouldn’t it also be helpful to have that kind of data about industrial accidents where people are driving lorries, vans or whatever on key roads like the A9 and A92 where we are hearing that there is a disproportionate number of accidents? Indeed, there are requests for the upgrading of roads. Obviously, there can be a difference between private motorists and some of these big vehicles that are involved.

Dr McDonnell: I can certainly feed that back; that is not a problem.

Lindsay Roy: Thank you; that is helpful.

Q503 Chair: Again, to be clear about this, these statistics do exist, do they?

Dr McDonnell: The numbers exist, because we know how many people are killed and injured on our roads, but they are not reportable under the RIDDOR regulations currently.

Q504 Lindsay Roy: What you don’t have is whether it is a private motorist or a commercial vehicle.

Simon Reevell : Insurers would.

Dr McDonnell: You can draw out all of that information. If I can point you toward Scotland’s Road Safety Framework to 2020, it is very clear in terms of trends and so on. I don’t have all the information to hand, but to give you an indication of how the Scottish Government are moving forward with respect to that, a medium-term target within the Road Safety Framework to 2020 is that everyone who supplies to the Scottish Government will have a MORR policy in place; that is management of occupational road risk. That is about reducing risk on our roads through a systematic approach to controlling it. That applies to every contractor who supplies the Scottish Government. It is recognised as an issue. The numbers are there, and that intervention is there in the medium term.

Q505 Lindsay Roy: Do you think we could get that information from the Scottish Government?

Dr McDonnell: I could probably provide you with that information, if you would like it.

Lindsay Roy: That would be most helpful.

Q506 Chair: Let’s be clear about what we think we will be getting just so that we know. You would be able to tell us for, say, the last year for which figures are available, which is always the caveat we use, how many people were killed as a result of driving-related incidents in Scotland while in employment, or in the exercise of their duties, or whatever the phrase is.

Dr McDonnell: Yes.

Q507 Chair: That would be very helpful. Mr Botha, do you have any comments to make on that area?

Alex Botha: No. In reviewing some of the other submissions already made, apart from the fact that the information is gathered separately, so you have the police and/or other bodies possibly gathering the road traffic information, clearly one factor is the regulatory issue.

Q508 Chair: I don’t care. That is not our problem. The fact that bureaucracy does not organise itself properly is not my problem; that is your problem and bureaucracy’s problem. The information is there and, therefore, you can let us have it. If we want to make recommendations about the disgraceful way it is done and so on, all of that can be done. I want to take you back to the question of data from the NHS. It used to be the case that hospital records for stab wounds and so on were much greater than the figures reported to the police for the same sorts of incidents. Presumably, the same applies to work-related accidents as well. Surely, the figures must be there. I cannot remember whether the last time I was in hospital they asked me in what circumstances such and such a thing happened, but surely the figures must be there and therefore accessible in some way.

Dr McDonnell: I think the way forward is for people to think more all-encompassingly about what the issues are in relation to accidents and occupational ill health, the way they are operating and what they can bring to the equation. The important thing for the way forward is to understand where all these pockets of data lie and to suggest that it should be looked at in a more uniform way.

Q509 Chair: I understand that. At the moment, I am still pursuing the question of collecting the data. Is there any difficulty about the NHS in Scotland supplying you, or somebody else, with figures indicating that you had 20 people in A and E in Southern General last night, four of whom were work-related?

Dr McDonnell: I have never asked that question, but I am prepared to ask it for you.

Q510 Chair: That would be immensely helpful. We suspect, partly because of the macho culture in Scotland and a variety of other things, that people are not likely to go to their boss and say anything about such and such, but they might very well turn up at a hospital having mashed their thumb with a hammer or something similar. That would be very helpful. Do you have any comment on that at all? You don’t have to.

Alex Botha: I have nothing further to add on that.

Q511 Chair: I am just giving you the chance to come in if you want to. Don’t feel obliged to invent an answer.

Alex Botha: I am not going to.

Q512 Simon Reevell: How do you police your members?

Alex Botha: We have a set of member regulations which borders on a code of conduct, where we expect them to adhere to certain broad principles. If they step out of line, so to speak, we will remove their membership and their ability to call themselves members, but it is a self-policing and fairly loose arrangement that we have.

Q513 Simon Reevell: Do you employ any particular method to see if they are out of line?

Alex Botha: Generally, it would be based on it being reported to us by the public or potentially other members. We also review the press fairly regularly. Particularly in the context of our providing awards, we are very sensitive to the fact that, if members are receiving awards, they need to be seen publicly to be above board in their practices as well.

Q514 Simon Reevell: So, if in the days ahead there were a reduced number of HSE inspections, is there a role for an organisation like yours to fill any gap that there might be?

Alex Botha: Absolutely. I think there is a very important role for organisations like ours to provide a kind of co-regulatory role and some kind of a kitemark that their practices are of a sufficient standard. Clearly, being a member is a fairly low threshold. There are other things we do. There are our award schemes. We have something called a sword of honour and globe of honour, which is a very high standard of practice that can give the public and/or other bodies some confidence that those organisations have a particular level of good practice. I absolutely think there is an important role for us to provide there.

Q515 Simon Reevell: Would you be confident enough in your systems and the standards to which your members tend to adhere to accept a system where membership of an organisation such as yours effectively qualified a company for a sort of HSE-light in terms of its regulation and inspection?

Alex Botha: To be clear, if it is membership and further services potentially that we provide-possibly some kind of audit where we do a bit more work to understand their practices-I would say yes. Membership by itself is a fairly low threshold, so I feel a little uncomfortable with that, but in broad terms, yes.

Q516 Simon Reevell: Obviously, from your name you are a UK-wide organisation.

Alex Botha: Indeed. We are international; we operate in 50 different countries internationally.

Q517 Simon Reevell: If you were filling the gap, or being a co-regulator, or whatever you want to call it, in the way we have just described, is that better done against a background of UK-wide health and safety, with one system for all?

Alex Botha: I would say yes. Many of our members operate across Great Britain. The feedback in response to our survey is that they value a consistent legislative and regulatory approach.

Q518 Simon Reevell: If the sort of changes being discussed came about and the HSE operated effectively by directing local authorities, there is no reason why they could not operate that way in Scotland as in England and Wales. The method would apply equally anywhere.

Alex Botha: Exactly.

Q519 Simon Reevell: If you had the HSE directing the local authorities and bodies like your own qualifying companies that achieve a certain level of membership for lighter HSE regulation, perhaps less inspection, all of that could function with a smaller HSE.

Alex Botha: I think the HSE’s resources are stretched as it is, so I would not advocate a smaller HSE, but, given that the HSE have a proportionate risk-based approach, we can help in directing their resources adequately and identify what those risky areas are, or indeed do the opposite: give them a sense of where it is not risky.

Q520 Simon Reevell: Just going back to the statistics we talked about earlier, if there are particular industries with a high level of serious injury in a particular geographical area of Britain, it makes sense to have a good look round there before you start going off somewhere where there are no injuries, or low injuries, etc.?

Alex Botha: Of course it does. If you have limited resources, that is certainly the approach we advocate; indeed, it is the approach that I know the HSE clearly have to take.

Q521 Simon Reevell: If we took that UK-wide approach, the statistics we have seen might suggest that the HSE need to do a bit more work in Scotland, because there are fewer investigations but a higher number of injuries. Do you have any comments on that?

Alex Botha: We touched on it earlier. We concur broadly with the view that the HSE have given to the Committee so far that, on the surface, there does not seem to be anything inherently different about the practices in Scotland, and the anomaly as between the accident rates in Scotland and England seems a broadly plausible explanation. It is very difficult for us to comment exactly on how legitimate that explanation is, but it seems plausible from our side as an organisation.

Q522 Simon Reevell: Putting aside the possibility that it is simply down to bad luck, one possibility would be to increase the number of investigations into serious incidents in Scotland back to the level that was undertaken in the past, because, at worst, it will simply confirm that it is all down to bad luck, and, at best, it might find the cause of what is happening.

Alex Botha: It could be the case; it could also be the case, as was alluded to earlier, that that would increase the deterrent effect and possibly increase compliance.

Q523 Chair: Simon seemed to be suggesting that perhaps you would be almost franchised out to do some of the work of the HSE. There is a difficulty if you are a membership organisation if it appears, perhaps, that people are buying a lighter touch, and it gives you potentially a clash of interests, doesn’t it? You are not necessarily as likely to be as vigorous in pursuing people who have given you huge amounts of money as you might otherwise.

Alex Botha: Indeed. I would just like to clarify that. We would certainly not be doing what the HSE do; we would not take on a regulatory role. All we could do is provide assurance of a level of health and safety and/or environmental management practice. That is all we could do in an independent capacity. How enforcement and all those things take place in the regulatory process would not be what we would do.

Q524 Chair: What would you do? Would you assess the paperwork, as distinct from the practice?

Alex Botha: The paperwork and the practice; it is both.

Q525 Chair: You would do visits of some sort, would you?

Alex Botha: Yes, absolutely. Our audits are based on visits and also reviewing paperwork.

Simon Reevell: If it helps, Chairman, the image I have is that a driver who goes on to pass his Institute of Advanced Motorists test and presents that information to the insurance company is therefore a better risk for insurance purposes. I am not saying it applies directly, but it is that sort of system.

Chair: I misheard you slightly earlier. I thought you were referring to reporting as being a clype mark. I thought it was an interesting notion.

Simon Reevell: If it catches on, then it is what I said.

Q526 Chair: Yes. If, on the other hand, it causes any bother, then of course it was somebody else. Dr McDonnell, having heard that exchange, is there anything you want to add to that?

Dr McDonnell: The idea of HSE-light is something I have heard mentioned before. I completely concur with what Alex is saying. It is more than membership; it is having a really good understanding of what the organisation is and what it does from a practical standpoint before you can ever desist from the full effects of any HSE attention.

Q527 Chair: But there are substantial areas of the economy where risk is exceptionally low and you could potentially be trusted to deal with those, in the sense it is easy lifting, so to speak, is it not?

Alex Botha: There are models that could be explored, certainly.

Q528 Lindsay Roy: I am aware of the proposals for cost recovery. What are your views on cost recovery to earn revenue through that programme? Do you have any views on that?

Alex Botha: We undertook a UK-wide survey of our members, and the broad view was that our members were in favour of it. They saw it as, in a sense, putting the burden on to the organisations that either benefit financially from bad practice or that are the perpetrators, if you will. On the whole, the proposal was accepted by our members, and indeed it is also accepted by us as an organisation.

Q529 Lindsay Roy: It is an incentive for compliance.

Alex Botha: Yes; there is an element where it is an incentive for compliance. Our members raised two points, and we also have some concern. The first is that potentially there could be perverse consequences for the HSE in particular on revenue targets and things like that. We have been assured that there are clear mechanisms in place to ensure that does not happen and those perverse consequences do not take place.

Q530 Lindsay Roy: So they are not exploiting a situation.

Alex Botha: Exactly, or focusing on the low-hanging fruit to generate revenue, as opposed to what they should be doing, but we have real assurances that that will not take place, and there are mechanisms to check that as well.

The second is about smaller businesses as well. There could be a disproportionate burden on them in cost and time when these investigations and the recovery itself take place. We just have two slight concerns, which were echoed by our members as well.

Dr McDonnell: In terms of cost recovery, I am not sure whether it has been agreed where the costs will be reattributed to. Do they go back to the HSE?

Q531 Lindsay Roy: They do. Do you have any concerns that cost recovery will deter some employers from reporting accidents, particularly SMEs, because of the financial consequences?

Alex Botha: In terms of surveys that have taken place, that concern has also been expressed. There is a potential for that to happen, but it is difficult to judge.

Q532 Lindsay Roy: Is there any indication from your members that this is motivated by budget cuts rather than health and safety considerations?

Alex Botha: The fee-charging regime is clearly taking place in hazardous industries, and has been for a long time, and that is quite successful. Clearly, budget cuts would have come into play; that is the reality of the situation we are in. But I think there is a legitimate case to say that the burden for investigation or regulation-whatever you call it-should be shifted to people who do not comply. There is a balanced argument outside the budget cuts as well.

Q533 Lindsay Roy: There is a focus on the targeting.

Alex Botha: Yes.

Q534 Chair: Let me clarify the balance between the desire for cost recovery on the one hand and the deterrent effect of possibly being stung if you do report accidents. What is the balance between these two?

Alex Botha: As to how the whole new scheme is implemented, I don’t have an answer to that question, but as you say, that will be the real challenge. Organisations will potentially be less prepared to "fess up" to something and then be charged for the privilege of doing that. The mechanism of how it will work is not very clear yet, but that would be one of the areas where we would like to see very clear guidelines.

Q535 Chair: It comes back to the previous point about statistics, because organisations are more likely to confess if they think they will be caught anyway by somebody turning up at hospital and it being reported by that route. If it was guaranteed that somebody would hear about it anyway and it could not be covered up, they would be much more likely to confess.

Alex Botha: It could be the case, yes.

Q536 Lindsay Roy: Much greater openness and transparency would be helpful, and this intercoordination would be beneficial as well.

Alex Botha: Yes.

Q537 Lindsay Roy: Dr McDonnell, in your evidence you referred to the need to attract media attention through exemplary fines. Are heavy fines an effective way of influencing compliance and behaviours?

Dr McDonnell: In terms of getting people to consider the impact of their downgrading behaviours, it could certainly be a very positive message.

Q538 Lindsay Roy: It could be a very negative message for some people if it is high profile in terms of the amount of fine imposed for a major departure from accepted practice.

Dr McDonnell: I am not sure I understand.

Q539 Lindsay Roy: What I am trying to get at is the effectiveness of using heavy fines. Your contention is that, if it is well advertised, there is a positive impact on other people.

Dr McDonnell: If having gone through due process there is a realistic fine structure linked to a particular event, and if the rationale for that is completely explained and people understand how to learn from their safety failures, we think that to have media publicity linked to that is a very positive thing.

Q540 Lindsay Roy: It would be a positive thing, in that other people would look to that and think, "How does that impact on us?"

Dr McDonnell: They would think, "How can I avoid it happening to me? How can I learn from that?, because, if we did learn from our safety failures, we would have fewer recurrences of the same type of incident.

Q541 Lindsay Roy: And it would not be a negative impact in terms of, "We’ll do what we can to cover up our inadequacies because we cannot afford to comply at the present time."

Dr McDonnell: With regard to covering up inadequacies, if something catastrophic happens and it attracts a large fine-or someone kills or maims a large number of people-you are then the centre of attention; there is no moving away from that. We need to use these events in as positive a way as possible to assist the wider learning within that industrial sector, for example.

Q542 Lindsay Roy: Is there any attempt by RoSPA to transfer and share that information across sectors through health and safety magazines?

Dr McDonnell: We both share information very clearly with the constituencies we represent.

Alex Botha: We both have membership magazines, conferences, best practice exchanges and things like that, so that is certainly an approach both organisations would follow.

Q543 Chair: All that stuff about sharing and exchanging good practice deals with the good boys again, doesn’t it?

Alex Botha: Not always.

Dr McDonnell: I was going to give the example of the Scottish Whisky Association. They produce a bulletin every couple of months that shares what has gone wrong, how it went wrong and how you can avoid it happening in your part of the industry. That is a very positive way of sharing what are essentially downgrading events. RoSPA have a Higher Performers Forum within the Scottish context where we share best practice case studies. Some of these are the good guys, but sometimes they have off days as well, and they are quite willing to share that information. They share it with my colleague’s organisation and ours, and we promulgate it as far as we possibly can.

Q544 Lindsay Roy: Is it true that you give out RoSPA awards on a regular basis?

Dr McDonnell: We have annual awards, yes.

Q545 Lindsay Roy: You are highly accredited, and you share that practice in your magazines.

Dr McDonnell: Yes, very much so. Within a Scottish context, the Higher Performers Forum is for those organisations that have RoSPA Healthy Working Lives awards, which are linked to the Scottish Centre for Healthy Working Lives, or any organisation that has been linked to a Health and Safety Executive case study, because we believe that, if you want to share best practice and can nip down to the next town and get together on a local basis and share that, those are all the different ways in which both our organisations share that type of information.

Q546 Lindsay Roy: We visited Raytheon in Fife which for 10 consecutive years had gained RoSPA awards. Presumably, that effective practice has been disseminated.

Dr McDonnell: Yes, very much so. You find that the higher performers want to share with other people how it works. Taking PHASS out on to the road has worked very well also in bringing together the smaller organisations and the higher-performing organisations. The point made earlier was that we are always talking to the good guys. The good guys are always ready to talk to people who need to be supported, and that is the way it has evolved.

Lindsay Roy: That is very helpful.

Q547 Chair: I want to follow up the point about fines. Are there other sanctions, such as custodial sentences, for those found to be responsible which would be more effective?

Laura Cameron: If I can say a couple of words on the penalties-the fines-at the moment, we all know that HSE and the Crown Office seek to issue press releases when significant cases have been prosecuted. They certainly find their way out into the health and safety arena quite regularly, often through the HSE themselves. I genuinely believe that our judges do a good job in deciding how to impose penalties. They are best placed to do that, because they can see the level of culpability, the mitigating circumstances and the financial standing of the organisation. On financial standing, I think judges in Scotland have also developed in recent times a policy of demanding a great deal of detailed information. If a company has been prosecuted, at the stage of sentence our judges expect from the defence team a very detailed account of the financial position of that entity: turnover, profit and, for that matter, the salaries and such like of directors. That is quite a recent development which I welcome, because you have to go to court armed with a huge amount of information.

Q548 Lindsay Roy: That is one aspect of proportionality, presumably. The nature of the breach would be another aspect.

Laura Cameron: Absolutely. The level of culpability and the mitigating circumstances are all factors that are presented to the judge, who makes a decision on penalty based on that.

Q549 Lindsay Roy: Also, presumably their previous track record.

Laura Cameron: Exactly. The previous record is very much to the fore, which is why I say our judges do a very good job and are best placed to decide that.

To come back to your point, thanks to the Health and Safety Offences Act, which came into effect in January 2009, it is now possible for individuals to receive a term of imprisonment for breaches of certain provisions of the Health and Safety at Work etc. Act. We are starting to see-we always have but I suspect more so now-prosecutions being directed not just against the corporate entity but also against individuals at a senior level in that organisation. The maximum penalty in certain circumstances is a term of imprisonment of up to two years.

Q550 Chair: How many have been sentenced to two years in Scotland for this?

Laura Cameron: The Health and Safety Offences Act came into effect in January 2009. It would only be the incidents that have occurred after that, so we are just starting to see these cases.

Q551 Chair: That is two years. How many have there been?

Laura Cameron: None that I know of at the moment, but I have to say that is just my understanding.

Q552 Chair: How many have been sentenced to any time in prison?

Laura Cameron: Again, I am not aware of that figure. If we are just looking at Scotland purely under the health and safety legislation, I don’t have those figures. I can look them up. The HSE website-

Q553 Chair: It wouldn’t be close to none, would it?

Laura Cameron: I suspect not too many.

Lindsay Roy: It would be helpful if we had that information.

Q554 Chair: Yes, that would be helpful. Obviously, the whole question of meaningful sanctions is key. If firms are financially struggling, then they might reckon, "We’ll produce our financial accounts and they won’t be able to take any money from us." Therefore, there is no meaningful sanction available to a court there, whereas a short period in Barlinnie is perhaps entirely feasible, if not desirable, for the individual concerned, and would be much more of a sanction.

Laura Cameron: Just to be clear, the health and safety legislation provides that the individual can be held accountable for the same offence as the corporate entity, if it can be shown to have been committed with their consent, connivance or neglect. So there is a job of work to be done on the part of the prosecution to prove that this offence was committed as a result of that individual’s consent, connivance or neglect.

Q555 Lindsay Roy: Are there any other sanctions that are commonly deployed, apart from custodial sentences and heavy fines, but which are not commonly deployed for health and safety offences?

Laura Cameron: Financial penalties and the term of imprisonment really are the two main ones. Under the corporate manslaughter legislation there are provisions for remedial orders or publicity orders to be granted by the court, but that is really just in the corporate manslaughter arena. There is also the possibility of director disqualification. If you hold a position of director and are convicted of an offence under the health and safety legislation, that is a possibility. The court could also impose a term of disqualification.

Q556 Chair: How many people have been disqualified?

Laura Cameron: Again, I don’t have that information here.

Q557 Chair: Are we talking of a figure close to nil?

Laura Cameron: I suspect not many. I would probably know if there had been a great number, but I am quite happy to look into that.

Chair: Again, that would be helpful because we want to be clear about what sanctions are available.

Q558 Lindsay Roy: Irrespective of the penalties, is it common practice for a followup monitoring visit?

Laura Cameron: By the HSE following an incident?

Lindsay Roy: Yes.

Laura Cameron: I suspect they do. I don’t know that for certain, but I suspect they would require some degree of satisfaction from the corporate entity that they had remedied what was wrong. Of course, it would be for the corporate entity to remedy that immediately if something had gone wrong.

To return to the Health and Safety Offences Act and terms of imprisonment, it relates only to incidents post-January 2009, so we are probably starting to see some cases coming through courts now. I said earlier that the development of the specialist health and safety division was a very positive one from our perspective in Scotland.

Q559 Chair: Obviously, we will move on to ask others about this, but I cannot recall ever having heard of anybody. You are a lawyer engaged in the field, and you cannot remember, at the end of the day.

Laura Cameron: There will be common law offences, which is why I am hesitant. You may find that senior executives in their individual capacity have been prosecuted under the common law perhaps for culpable homicide, or something like that, when their degree of recklessness merits it, but I am not aware of it under just the health and safety legislation.

Q560 Chair: I am not so fussed about whether or not they are done under this or that law, but the fact you cannot tell us of anybody ever having been done under this tends to suggest it is not particularly prevalent.

Laura Cameron: In Scotland, I suspect not. There is some HSE research on disqualification of directors for health and safety offences. I can look at that.

Q561 Chair: That would be helpful. In terms of the weapon of publicity, as it were, and the extent to which this is followed up, at the moment I am not aware of any firm in my constituency having ever been done for anything related to health and safety. I do not know where I could possibly look to find that out. That would tend to suggest that the publicity arrangements are not quite as strong as they might be. When I was in a local authority, I knew how to find out if somebody had been done for selling under-measure alcohol, mouldy pies and so on; I knew where that was, but I don’t know anything related to this at all. Is there a single source of information that all of us here could look up?

Laura Cameron: Yes. HSE’s website is very good. It has an enforcement section. If you dip into that, you can search directly against the name of an organisation, and you can search for any convictions.

Q562 Chair: But only if I know the name of the organisation.

Laura Cameron: You can search for type of offence. If you are looking for offences under the Construction, Design and Management Regulations, you can search against those regulations. It is a very effective tool. You can search not only for convictions in the past five years but convictions beyond that, and also for enforcement notices. If any organisation has been served with an improvement or prohibition notice, you can dip into that section of the website and search against it. You just need to know the first few initials of the name, and then it will bring up a number.

Q563 Chair: Obviously, we have been spending our time poorly because I must confess we have not dipped into the HSE website, but if I want to find out about my constituency, for example, that could be done as well.

Laura Cameron: Yes.

Q564 Lindsay Roy: We have discussed the ways in which people might deal with these situations. Is reputational risk becoming more and more of a factor, because we are in a very tight economic climate, and if you have that reputational damage you might well lose out on further contracts?

Laura Cameron: That is absolutely right. That enforcement section of the website lends itself to the tender situation. When people are assessing tenders, they are a bit more aware of that provision and they can search against various individuals, or corporate organisations, to find out what offences they have committed.

Q565 Chair: I want to move on to the question of prosecutions. The briefing we have reminds us that the NAO found a discrepancy between the data collected by the Crown Office and Procurator Fiscal Service on the one hand and that collected by the NAO on the other. RoSPA suggested in your evidence a tracking system for prosecutions and fines, did you not? Who should be responsible for all of that?

Dr McDonnell: Ideally, the HSE would be responsible for mapping that, working in partnership with the Crown Office and Procurator Fiscal Service, to establish a cradle to grave mechanism for the whole process.

Q566 Chair: You suggested a tracking mechanism, so we thought it was reasonable to ask you who you thought should be doing it. My next question is to both of you. The system in Scotland and England is different in terms of pursuing prosecutions. Which is better, and why?

Dr McDonnell: I could not make any comment on that.

Laura Cameron: I am happy to start that answer. I think that the introduction of our specialist health and safety division has made a huge improvement to our system in Scotland, so I do not think that, with that system in place, we are any worse off than the system in England and Wales. However, I would make just a couple of comments about that. One is that I suspect the new division has a very high workload. I query whether it has sufficient resource in that team to allow it to turn cases around within a reasonable period of time. In addition, as I understand matters, just looking at the fatal accident inquiry position, I don’t believe that the specialist division deals with all fatal accident inquiries in the country. That is a pity because, with its specialist HSE knowledge, it would be very well placed to deal with that.

I have had the benefit of reading the written submission from the STUC. They have made the comment that they are concerned that fatal accident inquiries are perhaps taking too long to come to court. I agree with that in general terms. They seem to take a period of time. That can be very distressing for the family, which is obviously of primary concern, but, bearing in mind that the purpose of a fatal accident inquiry is to allow the sheriff to determine the circumstances of the death, trying to gather any information for the purpose of that inquiry after a lengthy period of time can be difficult. Employees who were witnesses have perhaps moved on, or in the current climate some organisations that might have information have gone into liquidation post the event. I happen to agree with the STUC that perhaps we should bring these to court earlier, if possible.

Q567 Chair: There are very few of the organisations that speak to us, or are referred to favourably, who do not say they are under-resourced. How do we know, in a sense? What benchmark do we apply to say that this is under-resourced and this is taking too long? Are there universal standards, or standards elsewhere in Europe or the rest of the UK, by which we can say the Scottish provision is not adequate?

Laura Cameron: Not that I am aware of. I am not sure whether the Crown Office would keep information on when they receive reports from the HSE and when they prosecute it.

Q568 Chair: You can understand what we are after, can’t you?

Laura Cameron: Yes, I absolutely understand.

Q569 Chair: Maybe you could reflect on that and come back to us, because if it is under-resourced, we would have to justify claiming that it was under-resourced, as distinct from being maybe inefficient, ponderous or something else. Your view would be that the system in Scotland by and large is fine. It works just as well as the system in England, even though it is different; there are no problems. There is a question about lack of speedy throughput, which may be under-resourcing, inefficiency, and so forth. Does that seem a reasonable view?

Laura Cameron: Yes.

Q570 Chair: Can I turn now to the Löfstedt review? Basically, do you agree with the rationale for Löfstedt, which is the need to combine, simplify and reduce the approximately 200 statutory instruments that relate to health and safety law, and if so, why?

Alex Botha: The short answer is yes. I was at the launch yesterday. I think that, on the whole, the recommendations are sensible and ones with which we and our members agree. I think there is scope to reduce and simplify regulations. There are two very important points. First, the process of simplification will be quite time-consuming and particularly resource-intensive on the part of the HSE. We have some concern about how long that period will be and also how much it would take out of the HSE, because clearly it can divert their attention from inspection, etc., and things that are also very important. That is one of the concerns. The principle we are happy with, but the application will be a challenge.

Related to that is that we can have great and reduced regulation, but our members say that very often it is the guidance which is the key resource they use. I know that a process of reviewing the guidance is taking place within the HSE at the moment, but it is key that that guidance is produced very rapidly and is clear and simple and backs up that regulation, because that is really what the man or the company in the street uses. They don’t read the regulations. That is your high-end companies generally. Your average Joe company uses the guidance as the key source of information.

Q571 Chair: Is it necessary to combine simplification and rationalisation of the statutes and regulations themselves if you could just make the guidance easier? Basically, you seem to be saying that it is incredibly complex to make matters simpler, which I can accept. Is it not simply a translation of the guidance that is necessary?

Alex Botha: That could well have been an approach. For example, there might be a case for simplifying 40 pieces of regulation with regard to the energy sector into one, but ultimately, the guidance is the key thing from our perspective.

Q572 Chair: Until you articulated this just now I had not appreciated the complexity of making matters simpler. It seemed fairly straightforward to me. There again, I am not a lawyer, but actually you are.

Laura Cameron: When I started practising in this area of law 15 years ago companies’ failings and the resultant prosecutions were instigated because companies did not have policies and procedures in place. This is a bit of an over-generalisation, but often I now find that failings and the resultant prosecutions are not because companies do not have policies and procedures in place-they are there aplenty-and the problem is that they are not being used in practice, and they are either in a ring binder on a shelf or on an intranet page somewhere that is not that readily accessible by the people who need to know about it. If as a consequence of the professor’s review we have practical policies that will be used in practice by key operatives at the coal face, as it were, that is to be welcomed.

The best example I can illustrate for you is working in the oil and gas sector. I remember being impressed by the fact that one of the policies in operation that I was able to see was a single-page method statement risk assessment designed in such a way that it could be folded and put in the back pocket of a boiler suit. It also had written into it five minutes time-out for safety, which is generally used across the board in that sector. The attraction of that is that it was something that was taken out to the work site by the people doing the job. They had the rule to stop for five minutes and reassess what was going on to make sure nothing had changed that required them to alter their work practice. That tangible, helpful and practical policy with diagrams was, I think, invaluable, and very useful, and better than having something that is not very accessible at the work site. If that is the result of consolidating these regulations and we have practical policies that can be used, that is a good thing.

Q573 Chair: When I saw the idea of combining and bringing things together, I thought the fear of over-lawyerisation, as it were, was the problem and you really needed an idiot’s guide to it. In terms of what we think we are seeking to achieve, this investigation was triggered by the fact that the Scottish statistics were worse. We have pursued a number of questions with you which seem to us to be the appropriate ones to be asking. Are there areas that you think we have missed? Are there answers that you had prepared to questions we have not asked? Are there issues you wanted to raise with us here that you thought we ought to take on board? I was hoping that you were coming here wanting to help us rather than defend yourself against attack. I do not think we have been attacking you. We are here to be helped by you. Is there any helpful advice you can give us in pursuing our inquiry, because none of us really has a background in this, whereas you have. So tell us.

Dr McDonnell: It is really important to reflect on the fact that we have a very well marked and connected health and safety community within the Scottish context that places a lot of emphasis on partnership-working. HSE have been at the hub of that partnership- working to date, and we just hope that they are sufficiently resourced to enable us to continue along those particular roads. HSE have played a major role in the development of a health risks at work toolkit. Lots of very positive things are happening within the Scottish context that perhaps have not been discussed here to date. I just thought it important to reflect on that this afternoon.

Q574 Chair: Can I just come back on that? I am not worried about the good boys, if you see what I mean. There are a lot of rascals, chancers, villains and so on employing people out there who pay scant attention to health and safety. The danger is that in an economic crisis they will seek to cut corners. We are looking for ways to make a difference. This is not going to be our life’s work in a sense. What we are trying to identify are the pressure points where our recommendations can move things forward. In that context, the fact there are lots of partnerships and good work going on is all very well, but what seems to us to be a greater priority, or need for our intervention, is the more difficult areas.

Dr McDonnell: Certainly, and I completely agree with you. The partnership committee brings together the STUC. Everybody who has come in front of this forum will at some point in time have been linked to the partnership. It is an action-oriented forum that deals with issues within Scotland’s industrial make-up, culture and context. We were most successful when we had an action plan for 2005 to 2007, and the next meeting is to devise an action plan for the way forward. The people who have already been called in front of this committee, like the STUC and so on, are all participants in that. When I am talking about the health and safety community, I mean to reflect that there are key stakeholders round that table that have very good ways of cascading information to get out further than the good guys you mentioned.

Q575 Chair: Usually, it is a lot of the good guys sitting round a table who are talking to each other.

Dr McDonnell: I would not say so. It is an action-oriented committee that gave rise to ScORSA, for example-the Scottish Occupational Road Safety Alliance. My contribution this afternoon is hopefully to encourage people to think that there are other initiatives working well in partnership with HSE despite their current resourcing. We just hope that they are resourced to move forward and make a difference going forward.

Alex Botha: There certainly are not major areas that I would like to cover apart from those we have discussed today. I would like to make two points. The first relates back to Professor Löfstedt’s review. One of his recommendations was that there is a broader societal investigation into risk attitudes. That is something we welcome as an organisation. It also echoes the work we do in educating young people. Some of the responses I have read also refer to the potential cultural attitudes in Scotland you have already mentioned, which are possibly different from the rest of the country. From our side, maybe investigating that with a Scottish context could be of interest. We think that the work we do with young people in schools in making them risk-aware from a very early age is also very helpful. That is just one angle I want to highlight of potential benefit to explore in more detail.

The second point is really an offer. If any recommendations come from this Committee, we would be delighted to feed them back to our corporate members and see how that might impact them, and, indeed, maybe try to tease out any more issues there might be so we have access to a wide base of organisations that could see how the recommendations work in practice.

Q576 Chair: Could I follow up one of the points about schools? For example, what do you do for primary and secondary schools in my constituency? Would you be into them all?

Alex Botha: Yes; we visit them.

Q577 Chair: If I speak to the secondary schools in my area, they will be able to tell me that your organisation, not you personally, has been to all of them?

Alex Botha: We have contacted all of them. It does not necessarily mean that all of them have taken up our offers. We have contacted all the secondary schools and lots of charities working with NEETs across the UK. We have offered them access to a free qualification. For example, Graeme High School and Glasgow Academy are the kinds of schools we work with. There are a number of them.

Q578 Chair: Glasgow Academy is full of toffs, basically, who are not likely to end up working in bottom-end-of-the-market jobs where they are likely to be most at risk. If you provide a Glasgow Academy-type service, I wouldn’t have thought you are of much use to us.

Alex Botha: There are community colleges and the like that we also deal with. There are 120 schools in Scotland that we deal with. We will provide them with teacher training packs and the material to study and then administer the examination.

Q579 Chair: To how many in my constituency have you provided that?

Alex Botha: I don’t know, but I can provide you with that information.

Chair: That would be helpful, and I will weigh that against Glasgow Academy.

Q580 Lindsay Roy: Why is there not greater take-up of this material if it is freely available? I will certainly take it up with my authority.

Alex Botha: It is a good question. I am not entirely sure. From our side, we think it is a great resource to use. The take-up, to be fair, has doubled over the past year. Last year we provided circa 60,000 free qualifications, and this year it is 110,000, so the take-up is increasing. But, if you judge it against the whole school population and the population of young persons in the UK, it is only a drop in the ocean; there is a long way to go.

Q581 Chair: It would be helpful if you could give us some sort of statistical breakdown that gives an indication of which geographical and socio-economic areas you are covering, because it is no use if you cover the entire private sector and nobody else. Do you want to add any observations?

Laura Cameron: Just one point. My work takes me across a number of different sectors. I am struck by the fact that within each sector, whether it is construction, quarrying or oil and gas, there are very good groups and organisations that meet on a regular basis to talk about health and safety, best practice and performance. Generally speaking, they are supported by specialist HSE inspectors, which again is to be applauded. I just query how much cross-over there is between these different sectors about best practice. The example I gave of the boiler suit guide in the oil and gas sector could apply equally to the different industries of quarrying, construction and beyond. I just query whether the HSE could play a role in making sure that best practice is adopted and used, but not everything, because there are specialist regulations in each industry. But is that best practice being shared, or are we just operating in sectors in the health and safety arena? I am sure my colleagues here do perform a role in that, but I see perhaps a function for the HSE in that. It may work alongside the cost recovery proposal, for example, where the HSE could perhaps provide an advisory service at cost. I, for one, would imagine that many organisations would be willing to pay for such a service if the HSE were to come into that.

Chair: If colleagues don’t have anything else, thank you very much for coming along today. If on walking out of here you have a sudden revelation, by all means get in touch with us. Thank you very much.

Prepared 27th January 2012