some default text...

Health and Safety in Scotland

Written evidence submitted by the Health and Safety Executive (HSE)

Executive summary

1. Last year, the Scottish Affairs Committee commissioned the National Audit Office (NAO) to produce a memorandum on the work of HSE in Scotland. The report is published as written evidence on the Committee’s website. This submission does not repeat material already presented in the NAO report.

2. The system of health and safety in Great Britain rests on two key principles; that for good standards to be achieved, responsibility should rest with those who create the risks; and that there are good arguments on both ethical and economic grounds for good standards to be secured. Evidence shows that organisational leadership is important within each business, throughout supply chains and in setting expectations across trades and industries. Other important characteristics include having access to competent and proportionate advice either within the business or externally and managing health and safety with the full involvement of workers.

3. In comparison with other European countries, Scotland has one of the lowest rates of fatal injuries at work and the overall injury rate is in line with the average for European Union member states.  Within Great Britain, injury rates in Scotland are similar to those of English regions with similar occupational compositions. The type of occupation is the key driver of risk more than industry category, and that geographical variations are a product of these factors, not a cause of the differences that are seen. There are more people employed in higher risk occupations in Scotland which accounts for a slightly higher rate of fatal and major injury compared to Great Britain as a whole.

4. HSE uses evidence built up over decades of research and experience to deploy a range of interventions which foster characteristics and behaviours necessary for the protection of workers’ health and safety both in Scotland and elsewhere. HSE applies that knowledge in Scotland in the context of devolution, including a different system of law, a unique set of stakeholders and the close knit nature of Scottish business and public life, whilst at the same time ensuring that in depth specialist knowledge in key sectors is deployed efficiently and consistently across GB.

5. Health and safety in Scotland is not regulated by the work of HSE alone; local authorities are responsible for around 45% of Scotland’s workforce (in comparatively low risk occupations).

Evidence in relation to each of the terms of reference

· The effectiveness of health and safety regulation in Scotland

· The impact of health and safety regulation upon business

· How does the HSE know how effective their interventions are?

6. The main evidence for overall impact and effect comes from the relatively low injury rates in Great Britain. In comparison with other European countries, Scotland has one of the lowest rates of fatal injuries at work after allowing for industry mix. The overall injury rate is in line with the average for European Union member states, although allowing for the mix of industry would also reduce this rate, probably to below the EU average.

7. Injury rates in Scotland are similar to those of English regions with similar occupational compositions. The type of occupation is the key driver of risk rather than industry category, and geographical variations in injury rates are therefore largely explained within Britain as the product of a region’s relative occupational and industrial mix. Scotland has a higher rate of fatal and major injury compared to Great Britain as a whole, because there are more people employed in higher risk occupations in Scotland; but those workers are not at higher personal risk than others doing similar work elsewhere in Great Britain.

8. There were over 8,000 reported injuries in Scotland in 2009/10 that required more than 3 days off work. This represents a reduction of 18% since 2005/06. This reduction is in line with England and Wales. There is no significant difference in the rate of self-reported work-related illness in Scotland since 2003/04 compared with that of England and Wales. Over that period the average number of working days lost due to work-related ill health and injury per worker in Scotland fell from 1.9 in 2003/04 to 1.2 in 2009/10; a slightly greater reduction than in England and Wales. HSE considers that valid International comparisons that concern or include ill-health data are difficult to draw.

9. Many factors influence health and safety performance. HSE has, over the years, carried out a great deal of evaluation, and has reached several broad conclusions. These conclusions include that the factors do not operate in isolation; that several of the most critical factors rest with those who create risks, such as the importance of effective leadership; that the role of the regulator should therefore be to stimulate "ownership" and beneficial behaviours, as well as to identify failures and secure justice in a quasi-policing capacity; and finally, that evaluation can be both inconclusive and very costly and so is a support to, not a substitute for, professional judgments.

10. HSE has not identified what one might term a significant geographical character either to the impact of the influencing factors on risk control, or to the effectiveness of the many intervention techniques that are used by HSE. Indeed, there are two benefits from the integrated approach of HSE: large organisations with activities across Great Britain, receive consistent intervention, from a single regulator; and HSE is able to apply learning and techniques, adapted as necessary to suit local circumstances. For instance, Health and Safety Awareness Days are an effective proven method for influencing large groups of farmers. When these are held in Scotland, particular emphasis has been given to forestry and fish farming which are particularly important agricultural activities in Scotland.

11. HSE uses intelligence both on the present and the future severity, distribution, and evolution of work-related risks and major hazard activities to target its attention. Preventive work is directed towards major hazards, higher risk activities and poor performers. Well established published Incident Section Criteria identify the reports of injury and ill health that most require investigation. The way complaints about working conditions are handled illustrates the philosophy in paragraph 9, in action; the extent and speed of HSE’s response reflects the severity of the alleged risk, but where it is practical to do so, complainants are encouraged to resolve matters "in house" to stimulate proper ownership of the risk, and leadership.

The roles and division of responsibilities between the different bodies

responsible for health and safety in Scotland

HSE and Local Authorities (LAs)

12. The Health and Safety at Work etc. Act 1974 (HSWA), and related legislation, is enforced at individual work premises either by HSE or the relevant LA according to the main activity carried out there. LAs enforce mainly in the non-industrial sectors, in retail, service and leisure which accounts for approximately 45% of the workforce in Scotland. LA Environmental Health practitioners enforce a range of other legislation relating to food safety and public health nuisance as well as health and safety, providing multi-functional support to business. HSWA Section 18 places a duty on both HSE and LAs to make adequate arrangements for enforcement, with the Health and Safety (Enforcing Authority) Regulations 1998 specifying the industry sectors that each enforces.

13. As the GB-wide regulatory body, HSE provides strategic direction for the health and safety system as a whole. LAs and HSE as co-regulators operate in partnership. HSE issues guidance and planning material to assist LAs and monitors their contribution to health and safety activity (enforcement, inspection and prosecution) via voluntary data collection arrangements. The information is used for national statistics and for HSE and Ministers to review activity across Great Britain. Individual LAs use the collated data to benchmark against each other. LAs are however independent regulators and as such are not accountable to HSE.

Crown Office and Procurator Fiscal Service

14. COPFS is responsible for the prosecution of crime in Scotland and the investigation of sudden or suspicious deaths. Only COPFS, not HSE, may bring health and safety cases before the Courts.

15. The Lord Advocate established a specialist Health and Safety Division within COPFS in 2010. It comprises three dedicated units based in Aberdeen, Edinburgh and Glasgow and is led by a senior prosecutor with a total of 16 staff who work closely with HSE, local authorities and other agencies who report health and safety cases to COPFS.

16. HSE has a very good operational relationship with COPFS for both strategic co-operation and operational liaison on individual cases. COPFS prosecutors work from the main HSE offices on a regular basis.

The Scottish Government

17. HSE works closely with the Scottish Government on areas of overlapping interest especially on the links between reserved occupational health policy and devolved public health policy. The Scottish Government is also represented on the Partnership on Health and Safety in Scotland (PHASS) - chaired by HSE Board member Hugh Robertson, which aims to inform businesses about their responsibilities and promote access to the range of support mechanisms available to them in Scotland. In particular, HSE supports the free advisory service provided by the Scottish Centre for Healthy Working Lives which is funded entirely by NHS Scotland.

The Scottish Parliament

18. HSE in Scotland responds to enquiries and correspondence from MSPs and monitors Scottish Parliamentary business to respond to requests for briefing material within the reserved remit and to offer advice where it may be useful.

· Prosecution and sentencing in Scotland and elsewhere

· How does the HSE monitor the impact of the cases that are investigated, the number that lead to prosecutions, and whether fines are collected?

19. Enforcement decisions are taken in accordance with HSE’s published Enforcement Policy Statement (EPS). The principle of targeting inspection and investigation on those creating the most serious risks is carried through to HSE’s incident selection criteria and complaints handling procedures. The EPS sets out the principles to be applied when determining what enforcement action to take in response to breaches of Health and Safety legislation. Such action ranges from sending a letter, to issuing improvement and prohibition notices to prosecution. In 2009/10, HSE served 1,400 notices in Scotland (815 improvement, 589 immediate prohibition) of a total of 9,734 in Great Britain as a whole. Research has consistently shown notices to be a highly effective means of achieving compliance and remedying serious risk.

20. The majority of HSE’s prosecution cases arise from investigations. HSE’s Incident Selection Criteria ensure that the most serious incidents are selected for investigation. In addition to ensuring that the breaches of law that led to prosecution have been put right, HSE actively seeks to publicise the outcome of such cases, to influence others and to maintain public confidence generally.

21. In Scotland, prosecution of health and safety offences follows reports from HSE (or the Office of Rail Regulation or LA) to COPFS; and occasionally, COPFS raise a case themselves on the basis of evidence from other sources such as the Police. The decision whether or not to prosecute is entirely for the Procurator Fiscal. The criteria that COPFS considers are explained in their Prosecution Code.

22. Where a work-related death occurs the Work-Related Deaths Protocol Scotland is followed. This requires a thorough investigation of the circumstances jointly by the Police and HSE, or LA as appropriate, under the direction or guidance of the procurator fiscal. The purpose is to ensure that all possible offences are considered including Culpable Homicide as well as any health and safety offences. The agencies report jointly to COPFS.

23. HSE does not set targets for levels of enforcement. In 2009/10, the COPFS prosecuted in 35 of the 43 cases recommended to them by HSE (a reduction from the levels in previous years). The rate of conviction was 94%, which is consistent with that for the rest of GB, where 469 prosecutions were heard. 

Sentencing

24. Sentencing is a matter for the judiciary and the courts, within the legislative and regulatory framework set by the relevant Parliament. There are no sentencing tariffs in health and safety cases.

25. Sentencing practice in Scotland is mainly on a case-by-case basis in the criminal courts, with reference to the wide experience of sentencers in criminal cases and Appeal Court decisions. This is supplemented by legislation where the Scottish Parliament has made specific provision about the use of certain sentencing options, and by the Scottish Appeal Court’s power to issue guideline judgements. In addition, textbooks such as Morrison and Nicholson gather together information on sentencing law and practice. The Scottish courts can have cognisance of the sentencing guidelines for England and Wales, but are not bound by them.

Fines

26. Fines vary from case to case and hence from year to year. In Scotland in 2009/10, the average fine per conviction was £9,210 (the range of fine was between £500 - £70,000) for cases involving HSE-enforced cases, in previous years the average fine per conviction has varied from £249,418 in 2005/06 (reflecting the Transco prosecution which resulted in £15m fine) to £14,370 in 2007/08. For local authority-enforced cases the average fine per conviction was £6,938, and in the previous year £35,667.

· How does the effectiveness of the Health and Safety Executive (HSE) in Scotland compare with the effectiveness of the HSE in England, Wales and Northern Ireland; and whether the organisational structure of the HSE is the best way to manage health and safety in the context of devolution.

27. The 2009 report of the Commission on Scottish Devolution to which HSE gave both written and verbal evidence observed that much of the currently reserved area of health and safety is already dealt with on a day to day basis by devolved agencies (in particular local authorities) and enforced through the Scottish legal system. It noted that HSE appears to have worked to reflect Scottish needs and concerns in its work in Scotland, including by seconding staff to the Scottish Government and working with it on a number of high-profile initiatives including the creation of a free safe and healthy working advisory service (now the Scottish Centre for Healthy Working Lives).

28. The Commission also noted that although HSWA is reserved and HSE’s parent department is the UK Department for Work and Pensions, it is the HSE in Scotland (rather than DWP) which liaises with the Scottish Government and local authorities on a day to day basis. In 2005 Scottish and UK ministers agreed to the creation of a body to co-ordinate the work of the HSE with Scottish stakeholders – the Partnership on Health and Safety in Scotland (PHASS). The creation and development of PHASS, as well as the co-location of HSE officials and those from the Crown Office in order to better facilitate decisions on prosecutions, appeared to the Commission to be good examples of an agency exercising reserved powers taking into account the views of, and working with, those involved in the process.

29. The Hazardous Installations Directorate (HID) in HSE inspects both onshore and offshore major hazard activities in Scotland and the North Sea. HID staff, including topic specialists, are based in Aberdeen, Edinburgh and Glasgow and enforce the same legislation that applies elsewhere in the UK. The major dutyholders in the oil, gas and chemical sectors are often national or multinational businesses.

30. HID staff in Aberdeen in particular routinely interact with senior industry managers on matters that are relevant to industry activity and safety performance throughout the UK. It would be both inefficient and detrimental to the overall effectiveness and impact of HID to have separate arrangements in Scotland. The industry would also find this approach unhelpful and unwelcome.

31. The existence of a separate Executive for Northern Ireland demonstrates that it is possible for health and safety to be devolved. It should however, be noted that there is close working on a range of matters, i.e., trainee inspectors from HSE and HSENI undertake a common programme of training. The Commission recognised that there is no reason in principle why health and safety (or elements of enforcement) could not be devolved. Nevertheless, the Commission questioned whether this would appreciably improve matters for the people of Scotland.

32. The Commission concluded that the creation of a separate Scottish HSE could lead to duplication of effort (in both primary and support functions) as well as a deterioration in expertise on both sides of the Border. It recommended that in recognition of the close interaction of the HSE’s reserved functions with areas of devolved policy, a closer relationship between the HSE in Scotland and the Scottish Parliament should be developed and this has been followed up since the publication of the report.

· What effect any reduction in the HSE workforce might impact upon the HSE as a whole and its work in Scotland?

33. HSE is expected to make savings of at least 35% in the funding it receives from the taxpayer over the 2010 Spending Review (SR10) period, 2011/12 to 2014/15. At the same time, the Government has asked HSE to develop plans whereby businesses that are found to be in material breach of health and safety law should, rather than the taxpayer, bear the related costs incurred by the regulator. Preparations for this are underway, for implementation from 6 April 2012, but the actual amount of costs that will be recovered is inherently uncertain. HSE has therefore developed a firm plan only for 2011/12.

34. For the period covered by Spending Review 2010 there will be an altered pattern of activity. HSE expects to maintain its frontline activities of inspection and incident investigation at those businesses and in those sectors across Great Britain which represent the highest risks to the safety and health of workers and the public e.g. construction, waste management and recycling, some areas of manufacturing etc. It does not expect the reduction in government funding to have an adverse impact on its activities in these areas in Scotland. HSE’s work in relation to offshore oil and gas extraction, onshore chemical manufacture and storage and nuclear sites is already covered by cost-recovery and HSE does not expect its work in these areas to be affected adversely by its Spending Review settlement.

35. HSE will, however, significantly reduce the amount of proactive inspection it carries out in the sectors and businesses that are lower risk and who meet their legal obligations e.g. textiles, clothing, light engineering, local authority administered education provision. HSE will continue to investigate incidents in these sectors which meet its existing selection criteria and carry out inspections where there is evidence to suggest that standards are poor or people are at real risk.

· Is there a lack of data on health and safety matters in Scotland, and how does this affect the understanding of potential health and safety problems in Scotland?

· What international comparisons with similar sized countries, or similar risk industries, can be made which could be helpful?

· Whether the HSE have correctly identified the areas of concern and have appropriately targeted their resources in Scotland?

36. HSE collects or accesses a wide variety of information about health and safety, which is currently published in the statistics section of our website. The majority of the available data relates to health and safety outcomes such as the number of workplace injuries and cases of work-related illness. For injuries, this is available down to local authority area. We also publish a limited range of precursor data, relating to exposures and workplace working conditions in Great Britain. 

37. There are a number of issues involved in comparing reported accident data from Great Britain with other European countries. While work towards producing statistics on non-fatal injuries that are comparable across Europe is progressing, a key problem at present is that the UK data currently excludes road traffic accidents in the course of work, while the data for most of the other EU members includes such accidents. Furthermore, reporting rates differ between countries, in particular where there are different reporting mechanisms – for example, there is more under-reporting in systems based on employer reporting than those systems based on insurance or social security systems.

38. Self-reported data from the Labour Force Survey shows that the number of people suffering from an illness which they believe was caused or made worse by work in Scotland is not statistically significantly different, for example, from the average across English regions. In respect of working conditions, a benchmarking exercise was undertaken in 2008/09 across Great Britain. This showed that compliance with health and safety legislation in Scotland, as assessed by HSE inspectors, was on a par with compliance in England and Wales.

June 2011

Prepared 6th July 2011