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Health and safety law :
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imposes
a broad duty upon employers, the self-employed,
and occupiers of non-domestic premises, to take
reasonable and practicable measures to ensure
the safety of members of the public who may be
affected by their activities. These duties are
set out in section 3 and 4 of the Health and Safety
at Work Act 1974; and |
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requires
the HSE to make adequate arrangements for
the enforcement of these duties (unless Local
Authorities or other bodies have, by Regulations,
been made responsible for their enforcement).
This is set out in section 18 of the Health and
Safety at Work Act 1974. |
HSE,
therefore, has in law significant responsibilities
for dealing with public safety when it may be affected
by work-activities.
In
recent years the HSE has been under increasing pressure
to use its powers to enforce public safety issues.
However,
the HSE has however been concerned about the resource
implications in doing this.
As
a result in November 2003, it established a new policy
that set strict limits on when it will enforce public
safety issues.
This new policy did not effect situations when public
safety issues are indivisible from worker safety issues
(i.e. in relation to construction, the railways and
the nuclear industry): making construction sites and
railways safer for workers will make them safer for
the public, and vice-versa. In such industries, the
HSE did accept that it continued to have responsibilities
to enforce the legislation concerned with public safety.
However the HSE did not accept that it necessarily
had any role in the enforcement of health and safety
law in relation to members of the public when the
public safety issue, that arose from the work-activity
was entirely separate from anything that would have
make the work-place safer for workers.
The sorts of issues that this relates to are:
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a
death/injury of a member of the public at the
hands of the police or prisons. Such a death would
not raise any direct issues concerning ‘worker
safety’ (i.e. the safety of police officers)
though the death may be the result of unsafe working
practices on the part of the police force. |
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a
death/injury resulting from Council activities: |
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a
death/injury of a patient in a hospital. This
type of death does not raise issues concerned
with the safety of hospital staff themselves but
it may be the result of unsafe working practices
in the hospital. |
Prior
to November 2003, it used to be HSE's policy (in principle,
though it may not have been in practice) to intervene
when any of the three scenarios below existed:
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there
was no other government agency involved in regulating
the safety of this particular work activity, or; |
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the
legislation this agency was enforcing was not
adequate to regulate health or safety issues;
or |
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the
agency did not have the necessary enforcement
powers. |
In
line with its legislative responsibilities, this policy
did give HSE considerable role in the enforcement
of public safety issues - though the HSE was often
reluctant to enforce them.
The policy adopted in November 2003, meant that HSE
would only investigate deaths and injuries
to members of the public - that is to say those which
take place in situations where there is no direct
risk to a worker - when ALL of the following
conditions applies:
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the
HSE is provided with a sufficient indication that
a breach of section 3 of the Health and Safety
at Work Act was the probable cause of, or a significant
contributory factor, to the injury or risk complained
of; and |
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there
is a high level of risk or HSE needs to act/investigate
in the interests of justice; and |
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there
is no other, more appropriate, regulatory body
to deal with it |
The
CCA had very specific concerns about the very nature
of the three conditions.
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Even
when there is no other appropriate regulatory
body, the HSE will not investigate unless it is
given evidence that provides a sufficient
indication that (a) there has been a breach of
section 3 and (b) that the breach was a "probable
cause of, or a significant contributory factor",
to the injury or death.
However, it is usually the very purpose of
an HSE investigation, to find out both of these
things - and it is difficult to see how this evidence
can be obtained unless an HSE investigation itself
takes place. |
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in
relation to some public safety activities there
are agencies other than the HSE that have some
supervisory responsibilities. For example, the
Police Complaints Authority or the Commission
for Health Improvement.
However, in many of these cases, the non-HSE
body has no power to enforce their own regulations
or indeed health and safety law. They cannot
impose enforcement notices like the HSE nor
can they prosecute.
HSE's
new policy says in deciding whether or not there
is a more alternative agency, it should not
take into account the fact that the other agency
has no enforcement powers - unable either to
impose enforcement notices or criminal sanctions.
This means that even when there is a death/injury
where (a) there is sufficient indication of
a breach in health and safety law and the breach
caused the death/injury and (b) its would be
in the interest of justice to investigate, the
HSE will not investigate the incident even though
another agency which is investigating the incident
has no enforcement powers of any kind in relation
to safety issues.
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However,
the overriding concern was that it was questionable
whether HSE's new policy was compliant with its own
legal obligations concerning making 'adequate arrangements
for the enforcement' of section 3 of the Health and
Safety at Work Act 1974 as required by section 18
of the Act. As a result the CCA sought a legal opinion.
Following
the legal advice obtained by the CCA - which we sent
to the HSE - the HSE sought its own legal advice.
As a result the HSE have now produced a revised policy
which makes some significant changes to its November
2003 policy - though does not return to its old policy.
The
CCA is currently seeking further advice to determine
whether or not the new procedures are lawful.
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