HSE, therefore, has in law significant responsibilities for dealing with public safety when it may be affected by work-activities.

There is now increasing scrutiny upon the HSE as to whether it is, in fact, carrying out these responsibilities in a proper manner.

This is not a problem 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 undoubtedly accepts that it has responsibilities to enforce the legislation concerned with public safety.

However the HSE does not accept that it necessarily has a role in the enforcement of health and safety law in relation to members of the public when the public safety issue arising from a work-activity is entirely separate from anything that will make the work-place safer for workers.

So for example:

•	a death of a member of the public at the hands of the police does 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.
•	a death of a patient in a hospital does not raise issues concerned with the safety of hospital staff themselves but it may be the result of working practices in the hospital.

It is the HSE’s policy to only intervene in such situations when:

•	there is no other agency involved in regulating the safety of this particular work activity, or;
•	the legislation this agency is enforcing is not adequate to regulate health or safety issues;
•	the agency does not have the necessary enforcement powers.

However, it is not clear whether the HSE is consistently and properly applying its own policy.

The focus on the HSE’s role in this area is particularly stark when there has been a death or injury suffered by a member of the public which is linked to some form of work-activity.

The question arises whether, in such a situation, the HSE should investigate the incident and, if health and safety law has been broken, impose an improvement or prohibition notice or/and prosecute?

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What the law states
Safety Duties: Section 1 (1) of the Health and Safety at Work Act 1974 states that:

The provisions of this Part [of the Act] shall have effect with a view to …. (b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work;

Section 1(3) of the Act states that in relation to the above

"risks arising out of or in connection with the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking, the plant or substances used for the purposes of an undertaking and the condition of premises so used or any part of them." (emphasis added)

Section 3 of the act imposes the following duties upon employers and the self employed:

Section 4 of the Act places a duty on persons in control of non-domestic premises towards non-employees to whom the premises have been made available either as a place or work or as a place where they may use the plant or substances provided for their use there.

Examples include launderette premises where members of the public use the machines provided, or do-it-yourself garage premises. In the circumstances described, persons in control of the premises have a duty to take such measures as it is reasonable for a person in that position to take to ensure, as far as is reasonably practicable, that the premises and plant are safe and without risks to health. To see this section in full, Click Here

Enforcement Duty: Section 18 (1) of the Act states that

"It shall be the duty of the [Health and Safety] Executive to make adequate arrangements for the enforcement of the relevant statutory provisions except to the extent that some other authority or class of authorities is by any of those provisions or by regulations under subsection (2) below made responsible for their enforcement."

Regulations have been issued that give Local Authorities the responsibility for the enforcement of health and safety law concerning particular classes of workplaces and activities. To read about this click here.

What is required of the HSE in order to have made "adequate arrangements for the enforcement" of section 3 of the 1974 Act?

It should be noted that HSE’s obligation to make "adequate arrangements for the enforcement" of section 3 is no different from its obligations concerning the enforcement of all other relevant legislation.

It is therefore reasonable to assume that, in order to comply with its requirement to enforce section 3 of the Act, the HSE should ensure that its inspectors;

HSE’s Policy on Public Safety issues
HSE’s policy is set out in a number of documents. This is set out in detail directly below. If however, you just want to see the position summarised, Click Here

Michael Foot Letter (1975): In 1975 Michael Foot, as Secretary of State for Employment, wrote to the Health and Safety Commission (HSC) setting out how he saw the relationships between HSC, himself and other Ministers. In this letter he stated that although closely related to HSC’s responsibilities, consumer safety and structural safety of buildings were not within HSC’s remit.

It stated:

•	"It is not intended that your duties should extend to cover the safety of products sold to the public, as distinct from those sold or supplied for use at work";
•	"the structural safety of buildings and building regulation matters generally remain the responsibility of the Departments concerned with Building Controls"

To download the whole of this letter, Click Here.

However the HSC/E has, since then, taken on responsibilities in certain ‘consumer’ areas, for example, gas safety.

HSC Newsletter 1989: In 1989, the HSC published a "statement" concerning its policy on the enforcement of section 3 and section 4 of the Act. This states in its introduction that:

"The HSW Act has as its objectives not only the health, safety and welfare of persons at work, but also the protection of persons other than direct employees from hazards arising in connection with the activities of persons at work. The Health and Safety Commission and the enforcing authorities therefore have responsibilities in policy-making and enforcement towards both these groups of people. Because of the range and variety of the situations covered by the Act, the Health and Safety Executive (HSE) has found it necessary to consider how best to deploy its resources. The purpose of this statement is to describe the policy of the Commission and the approach of enforcing authorities to the enforcement of the HSW Act in relation to the health and safety of members of the public and persons other than direct employees.

In a section titled "General Policy on Enforcement" the policy states:

"As a general principle HSC and HSE wish to avoid duplication with other enforcing authorities. However, in deciding its approach to any hazardous area, the Executive's main concern will be the health and safety of employees, the self-employed and the public. It will want this to be achieved efficiently, effectively and economically, with fair and consistent policies responding to legitimate public concerns.

This will sometimes mean an area being dealt with HSE alone, sometimes by another authority or authorities, occasionally by a mixture of the two. It will influence how many resources are devoted to particular areas, by whom, and how they are deployed.

Sometimes the general provisions of Sections 3 or 4 of the HSW Act overlap with other, more specific, legislation enforced by other authorities. The Executive will then seek to agree demarcation lines with those authorities, in the light of:

The document then goes onto state that:

"In many areas of overlap agreement has been reached that the Executive should not generally attempt to enforce the requirements of sections 3 and 4 of the HSW Act because public safety will be adequately guaranteed by the enforcement of other legislation covering the risk in question. An example is the use of vehicles on the public highway, which is subject to the Road Traffic Acts and the Motor Vehicles (Construction and Use) Regulations. There is similar agreement over general fire precautions, which are the responsibility of fire authorities; over consumer safety, the structural safety of buildings andmany other areas of potential risks to the public. In its demarcation discussions with other authorities the Executive seeks to avoid needless duplication of enforcement, while ensuring that no areas of risk remain uncovered.

In a section titled, "Action by HSE Inspectors", the document states:

"Inspectors of HSE select the establishments they visit within the framework of a planned programme of inspection. This programme is based on a system of priorities intended to establish places where the risks are most serious. It takes into account the standards which have been found at previous visits, the assessment of the hazard (both to employees and to other persons including members of the public) and the inspectors' judgement of management's ability and willingness to maintain or improve standards.

In most establishments it is the employees who are primarily at risk. During the course of inspection of any premises or work activity, inspectors take into account the effect of Sections 3 and 4 on the protection of members of the public and persons other than direct employees in the same way as they assess the efficiency of measures taken for the protection of employees. For example, in a visit to a construction site inspectors will not only consider the effect of the work activity on persons who are directly employed but also on the employees of sub-contractors or any self-employed persons working in the vicinity, and the way in which the safety of the general public might be affected. The degree of priority for future inspection will depend on their assessment of all these factors.

There are some work activities where the major risk is to members of the public rather than to employees. For example, there is a clearly foreseeable risk to the safety of the public in the possible failure of fairground rides. Here also HSE seeks to identify places where the risks are most serious, and allocates enforcement resources accordingly. Inspectors give priority to situations where there is a high degree of risk, and where no other authority has a responsibility to ensure public safety.

In contrast to HSE, local authority environmental health departments have as their principal function the enforcement of other legislation designed to protect the public. Local authority enforcement officers have powers under for example, the Food Act and the Public Health Acts, in addition to those conferred by sections 3 and 4 of the HSW Act.

Paper to the HSC: There have been two recent papers, produced by the HSE as part of its internal consultation process, for consideration of the HSC (to see these, Click Here).

The November 2001 paper summarises HSE’s policy in the following way:

"HSE should not generally attempt to enforce section 3 where public safety is adequately guaranteed by the enforcement of other legislation covering the risk in question."

The paper then goes on to look at the effect of Section 18 HSWA. It states that this section:

"places a responsibility on HSE to make adequate arrangements for the enforcement of health and safety legislation. If no other authority is specifically made responsible, eg for any harm to a third party from the way an undertaking operates, then enforcement responsibility will generally fall to HSC/E. Where health or safety cannot be adequately regulated by the enforcement of other more specific legislation, or another authority does not have the necessary enforcement powers, or there is no other relevant authority, there may be a need to apply health and safety legislation, using section 3 as a last resort, with consequences for HSE’s enforcement resources." (para 8)

Summary of HSE’s Position: The HSE accepts that the default position is that the HSE is required to enforce all public safety issues resulting from work activity.

It will only not do so if:

"greater prioritisation is leading HSE to state that we will only address matters of serious or imminent risk in certain areas – a position that can be difficult to explain and justify to members of the public."

Police: Deaths and serious injuries suffered by members of the public are investigated by the Police Complaints Authority (PCA). Some of these incidents may be the result of unsafe working practices on the part of the police, and prima facie, require HSE investigation.

The following should be noted:

•

there is no other safety legislation that applies to the police other than health and safety law which is enforced by the HSE;

•

Although an investigation into the incident will be carried out by the police on behalf of the PCA, this will be concerned with whether a homicide offence has been commited or whether disciplinary action is appropiate. There will be no consideration of: • whether or not health and safety law has been broken; • whether improvement or prohibition notices should be imposed; • whether there should be a prosecution for breach of safety law

It is therefore difficult to see how the HSE can avoid investigating deaths at the hands of the police where working practices may be an issue.

The HSE and the PCA have published a Memorandum of Understanding on this issue (Click Here to download this document) but this does not make clear HSE’s responsibilities in this area. It states the following:

"When the Principal Inspector in the HSE local office receives notification from the police of a relevant accident to a member of the public, he may contact the supervising Member of the [PCA] for that police force, in order to inform the Member of whether he intends to investigate the accident, and to establish whether a complaint against the police has been referred to the Authority in connection with that accident. Whether or not the inspector decides to carry out a separate investigation, he may request from the Authority the necessary information to establish whether the findings include relevant health and safety issues." (emphasis added)

This does not make clear that the fact of a PCA investigation does not in any way exclude the need for an HSE investigation and that a death or injury at the hands of the police should be dealt with in exactly the same way as though a worker had been killed or injured.

Moreover the Protocol does state state that certain incidents should not be investigated by the HSE:

"In general, HSE inspectors will not seek to investigate incidents where the main issue is whether reasonable force has been used by a police officer in dealing with a member of the public; or whether the use of equipment for self-defence or deterrence, arrest or restraint such as CS incapacitant or firearms has been appropriate in the circumstances; or where there have been third party injuries as a result of the use of CS or firearms."

It is not clear how the HSE justifies this position, since issues of ‘reasonable force’, whether the use of equipment, the use of CS or firearms is appropriate or not can raise important issues concerning the adequacy of working practices.

In relation to suicides, the agreement states:

"Another area of potential public concern is self-harm and suicide in police custody, which are not accidents as defined in RIDDOR, and therefore not reportable. Recognising that the Authority will normally investigate such cases, HSE inspectors will not seek to carry out separate investigations, although they may request relevant information."

Again it is not clear how the HSE justifies such a position, in light of its legal obligations under section 18 of the 1974 Act and its own policy, since suicides in police custody can be related to working practices, e.g. the failure remove all ligature points that could allow a suicide to take place.

To read more about the HSE's responsibility for enforcing safety law on the Police (including information on what deaths and injuries to members of the public at the hands of the police should be reported to the HSE), Click Here

Prisons: Unlike with the police, there is no memorandum of understanding between the HSE and or other agency as to how public safety issues should be enforced.

As with the police, there is no other general safety legislation, other than that enforced by the HSE, to protect public safety.

However, unlike the police, prisons are Crown Bodies. This means although prisons have a duty to comply by health and safety law, the HSE cannot prosecute them or impose enforcement notices. However the HSE has developed a system to enforce the law in an informal manner using Crown Notices and Crown Censures. To see more about this, Click Here

There are three bodies that have some supervisory role over the prisons (HM Inspectorate of Prisons, Board of Visitors and the Prisons’ Ombudsman). None of these have responsibility for health and safety and none have any enforcement powers (to read about these organisations, Click Here).

It is therefore arguable, that the HSE should therefore be involved in the enforcement of section 3 as it relates to prisons and the investigation of deaths and injuries of prisoners to the extent that they relate to the working practices of the prison or prison officers.

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HSE Internal Consultation
The HSE is now involved in an internal consultation concerning its responsibilities in this area. They have produced two papers for the HSC

To download these papers in full, Click Below:
HSE Paper to the Board: November 2001 (word)
HSE Paper to the Board: October 2002 (PDF)

The November 2001 paper sets out why the HSE considers a review is necessary:

The October 2002 paper summarised the problem for the HSE in the following manner:

"The broad scope of s.3 and uncertainties about our role mean that the demands on resources could become even greater particularly if HSE is seen as providing a stop-gap to fill either deficiencies in others’ legislation or the inability/failure of other authorities to address issues that we regard to be more properly their concern. In particular, there is a threat to Revitalising priorities, and/or of judicial review, if the current approach is unchanged."

It says that the current pressures on HSE’s enforcement of section 3 include:

It states that in relation to resources:

"HSE’s Field Operations Directorate estimate some 38 staff years annually (excluding work-related road transport) were spent dealing with "public safety" issues and a further 25 staff years for domestic gas safety. This is, however, likely to be an underestimate and includes a significant amount of non-priority reactive topics."

It is concerned that the pressure from other Government departments is for the HSE to be increasingly involved in the regulation of public safety issues. The document states:

"Government more generally is not addressing this; rather some parts of Government are seeking to limit their role by replying on HSE’s enforcement powers (eg DTI and certain consumer safety issues such as the addition of radioactive substances to consumer goods). It is clear that HSE would have great difficulties in persuading other organisations that they should do some of the things we currently do under s.3 - the pressure is in the other direction."

The paper says that the HSE is curently considering the following options

What we can do in the immediate future to deal with the pressures on HSE in theenforcement of s.3. There is recognition that there is a need for greater prioritisation and the continued development of MoUs. However, greater prioritisation is leading HSE to state that we will only address matters of serious or imminent risk in certain areas – a position that can be difficult to explain and justify to members of the public.

What should we be aiming at for our future role in public safety? Public expectation of HSE is increasingly at odds with the fundamentals of our intended functions as envisaged by Robens, which recommended that HSE should not have all embracing responsibility for public safety.

There is a need to find ways to manage the mechanisms for agreeing demarcation issues and alternatives that HSE are considering include the possibility that Ministers or the Commission may give "directions" to HSC/E not to get involved in certain areas, or in setting priorities, further MoUs, etc.

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Section 4 of the 1974 Act

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