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Embargoed:
00.01 am, Wednesday, 16 March 2005
CCA legal advice forces HSC U-turn on public safety
policy
The Health and Safety Commission has been forced
to undertake a radical overhaul of a policy that restricted
its inspectors from enforcing health and safety law
in relation to public safety issues after considering
CCA legal advice that the policy was 'unlawful' and
fundamentally flawed.
The
policy would have meant that in relation to certain
defined activities - involving the police, hospitals,
road-traffic incidents, local council and others -
HSE inspectors would not have investigated possible
breaches of duties that employers have in relation
to the safety of the public, or taken enforcement
action including prosecutions. This would have included
not investigating deaths of members of the public
except in extremely limited circumstances.
The
CCA intervened by presenting the HSC with a written
opinion by leading public law specialists, John Halford
of Bindman and Partners and Mike Fordham of Blackstone
Chambers, that the policy tied inspectors’ hands
in a way Parliament could never have intended, wholly
undermining enforcement of a key safety duty and risking
a breach of Human Rights Act obligations. After the
HSC obtained its own legal advice - the Health and
Safety Commission agreed at its meeting on 8 February
2005 to issue a fully-overhauled policy, and guidance
to its inspectors. This has only just been published.
John
Halford, Solicitor at Bindmans and Partners, commented:
“The
HSC’s U-turn is very welcome, as was its willingness
to listen. Had it not done so, it is certain that
major incidents and risks to the public would have
gone investigated, or have been put in the hands
of public bodies that lack the investigation powers
that only the HSE has in its special role as the
guardian of public and worker safety.
In
the old 'unlawful' policy, HSE inspectors could only
investigate incidents involving members of the public
when all of the following circumstances applied:
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HSE
is provided with a sufficient indication
that a breach of health and safety law 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; |
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there
is no other, more appropriate, regulatory body
to deal with it. |
In
the new policy, the HSE accepts that it may be "appropriate
to investigate" where
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initial
enquiries, or information from other sources,
indicate that a breach of section 3 of the Health
and Safety at Work Act 1974 was the probable cause
of, or a significant contributory factor to, the
injury or risk complained of, and: |
| - |
there
was or is a high level of risk or
HSE needs to act/investigate in the interests
of justice. |
The
HSE therefore has to make 'initial inquiries' to determine
whether or not a breach of health and safety law has
occurred.
The
policy also makes clear that the HSE can not simply
wash its hands off an incident because there happens
to be another regulatory body with some oversight
of the activity in question - which the previous 'unlawful'
policy allowed. The new policy states that the HSE
must take into account whether or not this body has
sufficient "enforcement powers" to deal
with the public safety issues in question. This is
significant as, unlike the HSE, many bodies can not
impose enforcement notices or prosecute in relation
to safety issues.
In
addition, the new policy explicitly recognises that
the HSE may be the key agency responsible for ensuring
that the right to life is protected in law in certain
cases, an obligation imposed on public authorities
by the Human Rights Act 1998.
David
Bergman, Director of the Centre for Corporate Accountability
said:
"Though
this new policy may appear to represent a subtle
shift - it is however a significant one. From a
situation where the HSE were almost entirely withdrawing
from the enforcement of public safety issues, it
has now been forced to recognise that it has wide
statutory obligations to enforce the legal duties
imposed upon employers to take reasonable measures
to protect the safety of the public. And it now
recognises that it cannot simply turn a blind eye
to these issues it must give serious consideration
to undertaking investigations and enforcing the
law."
The
new policy is however not as wide at the policy that
existed prior to November 2003 where HSE accepted
that it was required to enforce all public safety
issues resulting from work activity, unless all of
the following factors existed
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there
was another agency which has responsibility for
regulating ‘health and safety’ in relation
to the activity in question; and |
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that
the law, for which this agency has responsibility,
and which deals with the activity in question
"covers the risk" arising from the work
activity and, if enforced, can adequately guarantee
public safety,and |
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and
that the agency has the necessary powers of enforcement;
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David
Bergman continued:
"The
HSE wants to refocus itself as an agency primarily
dealing with worker safety issues. In doing this,
the HSC is trying to use its limited resources in
what it considers to be the most efficient way possible.
However, in doing so the HSE simply cannot forget
that along with local authorities, it is the body
chosen by Parliament to enforces employers legal
obligations on public safety issues, and if it does
not have the resources to fund this work, then it
needs to demand it from the government. It cannot
simply reinterpret its responsibilities to save
money."
Despite
the positive changes, the CCA continues to have some
concerns about the new policy. It does not for example,
give inspectors any advice on the investigation and
enforcement powers of other agencies, and when it
would be appropriate to allow them to take over an
investigation. Moreover, the appendix of the guidelines
appears to contradict the main thrust of the policy
itself, in suggesting to inspectors that other agencies
can and should deal with public safety issues. On
this point, John Halford stated:
"The
detail of the new policy still reflects muddled
thinking about HSE priorities and the exact role
of other investigatory bodies. What inspectors need
is a clear set of guidelines on initiating investigations
into all significant risks, explaining when others
can and will take follow up action and, most importantly
of the resources to put these into effect."
To
read previous press releases on issue: May
27 2004 + Jun 24
2004
The
Centre for Corporate Accountability is a human rights
charity advising those bereaved from work-related
deaths, and working on issues of safety, law enforcement
and corporate accountability.
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