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HSC's
New Policy Statement
Along with new HSE guidance to its inspectors, the
HSC has published a new policy staetement on the "enforcement
of HSWA Section 3"
The
statement is set out in full below.
The key points of it are as follows:
| 1. |
Enforcement
of section 3 has to take into account of HSC's
health and safety priorities - which are most
recently set out in its 2010 and beyond strategy.
In doing so however, HSC accepts it must continue
to meet its responsibilities under section 18
of the 1974 Act "to make adeqaute arrangements
for the enforcement of of the relevant statutory
obligations."
It
should be noted that in relation to public safety
issues, the recent HSC strategy stated the following
in relation to public safety:
"HSE
will determinedly move away from intervening
in those areas of public safety that are better
regulated by others or by other means –
including civil law. HSE will continue to
apply its unique expertise to provide public
assurance that risks in the major hazards
industries are properly managed.
We
will promote a debate involving other government
departments and LAs about the appropriate
contribution of workplace health and safety
law to the wider public and consumer safety
regimes. We want to ensure a coherent overall
approach to public safety and to identify
gaps that need to be filled by other means.
"
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| 2 |
Para 3 of the statement sets out the guiding
principles. It says:
| "HSC
has therefore decided that: |
| • |
enforcing
section 3 HSWA in areas key to our mission
(for example, in major and high hazards,
including the nuclear industry and construction)
remains a high priority. HSE will continue
to address the most serious risks to the
public's health and safety from work activities
using its expertise to best effect and taking
into account the regulatory responsibilities
of others; |
| • |
HSC’s
general approach to public safety is set
out in HSC's Strategy and reflected in priority
programmes and incident selection criteria;
and |
| • |
HSE
and other enforcing authorities will take
account of HSC’s priorities and, generally,
give less priority to the enforcement of
HSWA section 3 in areas outside these priorities." |
|
| 3 |
It
then states the importance of co-ordination
with other relevant enforcing authorities to
"minimise unnecessary overlaps and time
delays".
|
| 4 |
However,
in relation to reported incidents or other section
3 issues raised, it set out a smiliar test that
is contained in the HSE guidance: - when initial
enquiries or information from other sources,
"may indicate that a breach of section
3 was or is the probable cause of, or a significant
contributory factor to, the injury or risk complained
of ... HSE and other enforcing authorities should
generally consider investigating if:
| • |
there
was or is a high level of risk; or |
| • |
enforcing authorities need to act/investigate
in the interests of justice. |
|
| 5 |
The
Statement goes onto say that where other more
sepcific legislation exists, involving other
authorities - the HSE or LA has to consider
whether ot not "it is suitable for them
to take the lead in an investigation."
In doing so, it should consider a number of
principle which are set out in para 5.
| • |
Effectiveness:
Which authority is best equipped, including
appropriate powers, to investigate the alleged
risks? |
| • |
Capability:
is the other body capable of ensuring public
safety? Does it have those enforcement powers
necessary to do so? |
| • |
Health
and safety expertise: Which body knows most
about the risks concerned and the effective
control measures? |
| • |
Economy:
Is either body already inspecting/visiting
the premises or activity in question? Can
duplication of visits be avoided? |
| • |
Efficiency:
Is health and safety enforcing authority
involvement a good use of resources when
considered against the scale of risk or
level of public concern? |
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HSC
Policy Statement
| 1. |
The
purposes of the Health and Safety at Work etc
Act include protecting people other than those
at work from risks to their health and safety
arising out of or in connection with the activities
of persons at work. Section 3 of HSWA places general
duties on employers and the self-employed towards
persons other than their employees. Since the
scope of section 3 is very broad, HSC has adopted
this policy to assist enforcing authorities in
the exercise of discretion when determining action,
including selecting incidents for investigation
where a breach of section 3 is suspected. It will
also assist HSE staff in their consistent application
of the principles set out in the HSC’s Enforcement
Policy Statement in determining which incidents
should be given priority, within the resources
available. |
| 2 |
HSC’s
arrangements for enforcing section 3 HSWA need
to take account of HSC’s health and safety
priorities – most recently set out in HSC’s
Strategy for workplace health and safety in Great
Britain to 2010 and beyond - whilst continuing
to meet the section 18 HSWA duty to make adequate
arrangements for enforcing the relevant statutory
provisions, and thus demonstrate reasonable exercise
of our responsibilities. |
| 3 |
HSC has therefore decided that:
| • |
enforcing
section 3 HSWA in areas key to our mission
(for example, in major and high hazards,
including the nuclear industry and construction)
remains a high priority. HSE will continue
to address the most serious risks to the
public's health and safety from work activities
using its expertise to best effect and taking
into account the regulatory responsibilities
of others; |
| • |
HSC’s
general approach to public safety is set
out in HSC's Strategy and reflected in priority
programmes and incident selection criteria;
and |
| • |
HSE
and other enforcing authorities will take
account of HSC’s priorities and, generally,
give less priority to the enforcement of
HSWA section 3 in areas outside these priorities. |
|
| 4 |
There
are many situations where work activities which
may give rise to risks to health and safety are
regulated by other authorities using legislation
that may address circumstances which are also
relevant to health and safety at work issues.
HSC’s policy, in accordance with the Government’s
Enforcement Concordat, is to ensure that, wherever
practicable, enforcement action by the health
and safety enforcing authorities is effectively
co-ordinated with that of other, relevant enforcing
authorities so as to minimise unnecessary overlaps
and time delays. However, initial enquiries, or
information from other sources, may indicate that
a breach of section 3 was or is the probable cause
of, or a significant contributory factor to, the
injury or risk complained of. In such circumstances,
HSE and other enforcing authorities should generally
consider investigating if:
| • |
there
was or is a high level of risk; or |
| • |
enforcing authorities need to act/investigate
in the interests of justice. |
|
| 5 |
There
may, however, be a relevant health and safety
interest in some aspects of a work activity covered
by more specific legislation. HSE seeks to agree
with other authorities who should take the lead
on an investigation (to avoid unnecessary overlaps
and time delays) and, where there may be a need
to act alongside each other, which activities
are most appropriately dealt with by each authority.
HSC expects enforcing authorities to consider
the following principles when deciding whether
it is suitable for them to take the lead on an
investigation:
| • |
Effectiveness:
Which authority is best equipped, including
appropriate powers, to investigate the alleged
risks? |
| • |
Capability:
is the other body capable of ensuring public
safety? Does it have those enforcement powers
necessary to do so? |
| • |
Health
and safety expertise: Which body knows most
about the risks concerned and the effective
control measures? |
| • |
Economy:
Is either body already inspecting/visiting
the premises or activity in question? Can
duplication of visits be avoided? |
| • |
Efficiency:
Is health and safety enforcing authority
involvement a good use of resources when
considered against the scale of risk or
level of public concern? |
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To
download the statement, click here
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