|
Excerpt
from "Introduction" to Report, "Making
Companies Safe: What Works?"
Please note, this excerpt
does not contain footnotes
HSC/E’s
“Faith Based” Policy Making?
The Centre for Corporate Accountability (CCA) was
prompted to write this detailed review as a result
of two recent decisions by the Health and Safety Commission
and Executive (HSC/E) – the government body in
Britain with principal responsibility for the regulation
of work-related safety.
The first decision was HSC's October 2003 recommendation
to the Government that legal duties should not be
imposed upon company directors, even though the HSC
had previously committed itself to advising Ministers
“on how the law would need to be changed to make
these responsibilities statutory”. The HSC instead
concluded that it should continue with its “existing
voluntaryapproach to promote and encourage greater
corporate responsibility and accountability through
engagement and publicity and guidance.”
Secondly, the HSC/E have recently taken a series of
strategic decisions which, if implemented, will bring
about a significant change of emphasis in how the
HSE and Local Authorities attempt to secure compliance
with health and safety law. This strategic shift is
articulated publicly in its February 2004 strategy
document, “A Strategy for Workplace Health and
Safety in Great Britain to 2010 and Beyond”,
and in its written evidence to the Select Committee
on Work and Pensions, but is most robustly stated
in a number of internal papers.
What is this shift? In sum, it is a move away from
traditional modes of obtaining compliance – through
the use of inspection, investigation and enforcement
– to alternative forms of interventions, involving
the creation of “strategic relationships between
organisations and groups”, “engaging with
the most senior managers to enlist their commitment”,
and “encouraging those at the top of the supply
chain to use their influence”.
So for example, the new Strategy document states that:
“Acceptable
health and safety standards can be achieved in many
ways and much of this strategy focuses on new ways
of securing compliance voluntarily”
In
its recent evidence to the Select Committee, the HSC/E
stated that there should be two key principles that
HSE and Local Authorities should consider when determining
what interventions to make:
“The
first principle is a fresh emphasis on encouraging
duty holders to do more to improve health and safety
by updating and improving the financial and other
arguments to persuade duty holders that good standards
will help their business. The second principle is
to be vigorous and consistent in going beyond compliance
assessment and enforcement to make full use of other
intervention strategies.”
Whilst
the HSC states that “inspection and enforcement
will remain vital intervention strategies”6it
is clear that their use will be increasingly limited
in favour of strategies that emphasise voluntary compliance.
In an internal paper written a few months prior to
HSC’s new strategy document and in its evidence
to the Select Committee, HSE’s Deputy Director
General stated:
“In
terms of the balance of our efforts we want to put
more emphasis on the ‘educate and influence’
aspects of our work and the working in partnership
with others (at all levels) who can help achieve
the improvement in health and safety performance
for which we strive”
It
goes on to state:
“Encouraging
our staff to use their authority and experience
more on these activities [i.e ‘education and
influence’] means using a smaller proportion
of our total front line resource for the inspection
and enforcement aspects of our work”
And
in a subsequent paper written after the publication
of the new Strategy Statement, the HSE stated that
the vision of the new strategy:
“means
that in ten years time the regulators will no longer
be the principal drivers for improvement ... [because]
health and safety become the accepted norms, the
moral and business cases [for safety] are well understood,
and employees play a greater role.”
There
is no question that the underlying emphasis of this
new strategy is that the role of the HSE and Local
Authorities as enforcers of the law through inspection
and investigation is to be a diminishing one.
These
two decisions - to continue down the voluntary approach
in relation to directors’ responsibilities and
to implement a significant strategic shift in its
compliance strategies - were both of particular concern
to the CCA because they appeared not to reflect the
available research.
In
fact, in its explanation of why it had decided to
continue along the voluntary path and not impose legal
duties on directors, there was no consideration of
the evidence about the relativeeffectiveness of voluntary
guidelines versus legislation. The HSE concluded that:
“Although
legal obligations did make people take their responsibilities
more seriously, further legislation should be seen
as an option only once all other avenues including
voluntary approaches had been fully explored. An
approach based on voluntarism might be the most
appropriate way of bringing about cultural and behavioral
change ...”
The
only research considered by the HSC in making this
decision was an assessment of the impact over the
previous two years of the voluntary guidance which
it had published in 2001 – research which was
in fact very mixed in its conclusions. The HSC did
not consider any research on the potential effectiveness
of law reform in this area - which is curious because
of the importance that HSC has given to the potential
impact of directors’ conduct. It accepts, for
example that ensuring that the “boards of large
and medium organisations provide the leadership and
direction” in health and safety issues is “essential
if we are to achieve our health and safety targets.”
Similarly,
in the background to HSC’s new policy on ‘enforcement’,
nowhere in HSC/E’s internal discussion papers,
or in the minutes of their Board meetings, has there
been reference to any solid empirical evidence to
support the shift towards “new ways of securing
compliance voluntarily”. In fact, the HSE’s
Deputy Director General has acknowledged that its
decision to devote even more of HSE’s already
over-stretched resources to educational activities
at the expense of enforcement is unsupported by evidence.
He stated:
“It
simply reflects a belief (and we agree at present
our evaluation of the effectiveness of different
approaches and techniques is not sufficiently well
developed to allow it to be more than this) that...
altering the balance in this will help us to climb
off the current plateau in safety performance and
to tackle the increases in ill health.”
This
“faith-based” policy making is of course
particularly odd since the HSC/E claim that:
“Our
work is underpinned by sound science, technology
and evidence, all of which is open and available.”
And
that their new strategy to 2010 and beyond:
“has
been developed through a process of consultation
and the examination of available evidence on the
effectiveness of health and safety interventions.”
However,
our report shows that had the HSC/E studied this research
– and genuinely used it as a foundation for making
decisions on these issues - they would have come to
very different conclusions to those reached in their
new strategy.
Understanding
the HSC/E
This report is neither about why the HSC/E has come
to make the decisions it has, nor why in doing so,
it has apparently ignored the evidence – however,
two important factors do, in our view, help to provide
an explanation.
The
first is the issue of “resources”. In its
recent evidence to the Select Committee on Work and
Pensions, the HSC/E acknowledged that its current
financial settlement with the Government, “represents
a significant reduction in spending power”. In
November 2002, the HSE told its staff that “we
will not fill any [inspector] vacancies for the time
being” and that “we also have no plans at
the moment for further recruitment.” Due to staff
retiring and leaving this is already resulting in
a reduction in the number of inspectors. The foreword
to its Strategy statement acknowledges that “this
is a strategy about finite resources, hard choices
and priorities.”
Such
a financial situation severely restricts the options
available to the HSC. It is of course very difficult
for the HSC/E to agree a strategy involving more inspections,
investigations, imposition of enforcement notices
or prosecutions – even if that was what the research
suggested – if the Government does not support
it with resources.
The
second factor – which is perhaps even more important
– is the Government’s own thinking on business
regulation which appears to be dominated by a concern
with 'relieving burdens on business’. For instance
the Government’s Budget report for 2004 states
that the Government is committed to delivering “targeted
deregulatory changes to relieve burdens on business”.
A
recent HSC discussion paper on ‘Becoming a Modern
Regulator’ acknowledges the influence of the
Government’s agenda on ‘reforming and reducing
regulation’ within the HSE. The report states:
“In
recent years, there had been deregulatory pressure
from within government to reduce burdens on businesses,
be clearer about the benefits of regulation, and
more sympathetic to business needs.”
The
report also specifies some of the ways in which HSE
has responded to these pressures, as well as the ways
in which it has responded to the recommendations of
the Government’s Better Regulation Task Force,
which, according to the report:
“continues
to press the case for more imaginative and creative
thinking on achieving the policy outcomes of regulation
through routes other than “classic regulation”.
HSC’s
paper also refers to the current Hampton review. This
is a Treasury led review that has been recently set
up to explore the scope for promoting more “targeted
inspection programmes,” and whose aim, in part,
is to “minimise the costs borne by compliant
firms”. As a response to this, HSE has asked
HSC to “give a steer... on the scope for promoting
more efficient approaches to regulatory inspection
and enforcement,”including proposals to introduce
“earned autonomy” whereby some companies
will be exempt from HSE inspections altogether.
In
terms of HSC/E’s future emphasis and direction,
then, it is clear that Government policy and initiatives
will continue to have a major impact.
Behind
the Government’s thinking
Does the Government itself have good grounds to favour
‘deregulation’? It seems that the Government’s
position is centred around UK business claims that
a “mounting burden of regulation” has been
having a negative impact on business for some time.
However,
this is contradicted by independent evidence from
the OECD, the World Bank, the accounting firm Arthur
Andersen, and The Economist, which shows that Britain
is one of the most business-friendly and least regulated
countries in the world. For instance, the OECD economic
survey this year states that:
“Competitive
pressures appear to be relatively strong in the UK,
with economic and administrative regulations inhibiting
competition and barriers to trade among the lowest
in the OECD.”
It
also found that the UK has the lowest costs and the
most entrepreneurial-friendly regulation in the EU.
Similarly, the World Bank put Britain in the top ten
out of 130 countries with the least regulation. And
whilst UK business claims to be ‘overburdened’
by ‘red tape’, the 2004 Federation of Small
Businesses’ membership survey reports that confidence
is strong, with 43 per cent of businesses growing
in size and only 16 per cent shrinking.
Back
to Reality
There have been over 2000 deaths to workers and the
public since 1997, and around 200,000 reported major
injuries. HSE investigations and HSE-commissioned
research has consistently shown that the majority
of work-related deaths and injuries in Britain –
around 70 per cent – could have been prevented,
and were the consequence of management failure.26
In addition an estimated 1,126,000 people in Great
Britain suffer from a musculoskeletal disorder caused
or made worse by their work, and overall around 2.3
million people in Great Britain are suffering from
work-related ill-health.
What
is good for business is not always good for health.
The purpose of regulation is to protect people from
unnecessary suffering and avoidable harm, and it is
this purpose that should inform the Government’s
assessment of whether or not health and safety regulation
is successful. Our position is that regulation should
not be judged on whether “significant and lasting
improvements in the regulatory environment for business
will be delivered”.
There
is clearly an urgent need for further action –
to address our growing occupational health problems
and to address current levels of preventable work-related
death and injury. However, this action needs to be
based on solid evidence, not on ideological assertion.
What
this Report is not about
The aim of this report is to review the empirical
research relating to a range of regulatory options,
to consider whether HSC/E’s new approach is consistent
with this evidence, and finally in light of this evidence
to consider how effective HSC/E’s new approach
is likely to be in protecting the health, safety and
welfare of those who depend on them.
It
is important to note what this report is not about.
First, it only focuses on research relating to ‘improving
safety’, it does not consider other advantages
of particular approaches. So, for example, in considering
the effectiveness of prosecutions, the report looks
at how they impact upon the future conduct of the
company prosecuted and on other companies. The report
does not look at other potential advantages of a prosecution
strategy – for example ones of ‘accountability’
and perceptions of ‘moral justice’. These,
of course, do need to be taken into account when considering
an appropriate compliance strategy, but they are not
considered here.
In
addition, the focus of the report is on the impact
of regulation. It does not consider, therefore, other
important ways in which improvements in the work environment
can be secured, such as the widespread provision of
occupational health services.
Finally, this report does not deal with the extensive
academic literature on ‘responsive regulation’,
or speculate what the best ‘mix’ of regulatory
strategies and styles might be in a range of enforcement
situations
Back
to press release
|
