|
HSE
and Public Safety - the legal issues
The two main issues are as follows.
| • |
What
obligations are there upon employers and the self-employed
in relation to ensuring the safety of members
of the public who may be affected by their work
activities; |
| • |
what
obligations are their upon the HSE to enforce
these duties? |
| • |
Does
the Human Rights Act 1998 impose any obligations
upon the HSE to investigate deaths of members
of the public? |
The
CCA sought legal advice in relation to the 'lawfulness'
of the new policy. To read about this, click
here
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:
| (1) |
It
shall be the duty of every employer to conduct
his undertaking in such a way as to ensure, so
far as is reasonably practicable, that persons
not in his employment who may be affected thereby
are not thereby exposed to risks to their health
or safety. |
| (2) |
It
shall be the duty of every self-employed person
to conduct his undertaking in such a way as to
ensure, so far as is reasonably practicable, that
he and other persons (not being his employees)
who may be affected thereby are not thereby exposed
to risks to their health or safety. |
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
HSE's powers to enforce these duties are exactly the
same as its powers to enforce any other duty under
health and safety law. It can impose improvement or
prohibition notices or prosecute.
HSE's
Obligation to enforce these duties
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 - including
section 3 of the 1974 Act - concerning particular
classes of workplaces and activities (to read about
this click here). However, in
relation to those premises over which the HSE has
jurisdiction, the HSE has not by regulation delegated
any of its powers to enforce section 3 and 4.
What then is required of the HSE in order to have
made "adequate arrangements for the enforcement"
of section 3 (and section 4) of the 1974 Act?
The
HSE accepts that this section imposes responsiblities
upon it. It is interesting to note what the HSE considered
this meant, before it established its policy in November
2003. In a discussion paper the HSE provided to the
HSC, the HSE stated that section 18:
"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)
The
HSE seemed to be suggesting from this that in order
to comply with its obligations under section 18, the
HSE has the responsiblity for applying section 3 of
the act where any of the three following criteria
exists:
| • |
where
health or safety cannot be adequately regulated
by the enforcement of other more specific legislation
by another body, or |
| • |
another
authority does not have the necessary enforcement
powers |
| • |
or
there is no other relevant authority |
This was in effect what HSE's old policy in this area
was.
It
would appear to have been the case that, in order
to create the November 2003 policy, the HSE had considerably
re-interpreted what its obligations were under section
18. However, the new policy published in Feb 2005
is a new re-interpretation.
It
should also be noted that HSE’s obligation under
section 18 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 - when any of the above three conditions
exist - the HSE should ensure that its inspectors;
| • |
when
undertaking inspections, consider any relevant
public safety issue; |
| • |
when
deciding whether to investigate deaths and injuries
suffered by members of the public resulting from
work activities, use the same criteria as when
a worker has been killed or injured; |
| • |
when
undertaking an inspection or investigation, consider
whether employers and others have complied with
their duties towards the protection of the safety
of members of the public; |
| • |
if
they have failed to comply with these duties consider
whether it is necessary to impose an improvement
or prohibition notices and/or to prosecute. |
ack
to the Top
|
