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HSE's
November 2003 Public Safety Policy - now no longer
applicable
The
principle purpose of HSE's November 2003 policy, concerning
safety of members of the public as set out in its
Operational Circular 130/9, was to restrict HSE's
involvement in the enforcement of health and safety
law as it related to members of the public in relation
to certain activities.
It
would have resulted in HSE inspecting and investigating
only a very limited number of public safety issues.
Many
deaths and injuries to members of the public - which
HSE's previous policy required it to investigate (though
it may not have done in practice) would no longer
be subject to HSE scrutiny.
This
shift was brought about principally due to resource
issues. To read about HSE funding issues, Click
Here
The
policy stated that the:
"scope
of the general duties set out in s.3 of the 1974
Act means [HSE] risks getting drawn into areas where
involvement would be inappropriate and/or overlap
or duplicate other regulatory authorities responsibilities."
It
goes on to say that:
"HSC
has reviewed the arrangements for enforcing s.3
HSWA, taking account of current health and safety
priorities, whilst meeting the s.18 HSWA duty to
make adequate arrangements for enforcing the relevant
statutory provisions."
It then listed the:
"areas
where HSE will only investigate or take action in
the very limited circumstances."
These
were:
| (1) |
Areas
regulated by other authorities and legislative
regimes
| (a) |
Incidents
relating to the clinical judgment, and the
training, systems of work etc. to deliver
those judgments, of doctors, dentists etc. |
| (b)
|
Road
traffic incidents |
| (c) |
Deaths
in custody |
| (d) |
Passenger
aviation health issues |
| (e) |
Inland
waterways |
| (f)
|
Large
reservoirs |
| (g)
|
Planning
matters |
| (h) |
Fencing
of quarries |
|
| (2) |
Where
a public body fails to discharge its statutory
duties or where the consequence of its decision-making
process is alleged to have resulted in risks arising;
|
| (3) |
Buildings
and other structures; |
| (4) |
Consumer
safety issues; |
| (5) |
Where
the risk arises from natural features (unless
a work activity is taking place) e.g. cliff edge,
lake, river, stream, falling trees, falling rocks
(e.g. Cheddar Gorge); |
| (6) |
Hazardous
leisure pursuits e.g. Bungee jumping, water sports,
etc. |
New
Policy in relation to investigations of Reported Incident
In relation to incidents reported to the HSE which
fall into these areas, the new policy stated that
the HSE:
| "should
not start to investigate injuries to non-employees,
or complaints about risks to non-employees unless
all the following apply: |
| • |
we
are provided with a sufficient indication that
a breach of s.3 HSWA was the probable cause of,
or a significant contributory factor to, the injury
or risk complained of; |
| • |
there
is a high level of risk or HSE needs to act/investigate
in the interests of justice; |
|
•
|
there
is no other, more appropriate, regulatory body
to deal with it. " |
It
also says that "there may also be pressure to
act in other cases outside" these specified categories
of incident, but says that "in such cases",
the HSE "should only get involved when the criteria
[above] are met".
Policy in relation to inspection
The policy stated that in the course of inspections,
the HSE should not raise s.3 HSWA issues in relation
to the specified areas/activities, but should instead
advise dutyholders "to contact the other authority
who more properly deal with the matter. "
Policy in relation to Imminent Danger
The HSE accepts that where there was imminent danger,
the HSE might still have a role - though even this
is constrained within a number of caveats.
The
new policy stated that:
"Even
where the primary responsibility for controlling
risks to non-employees rests with another authority,
we may nevertheless need to take action to control
an immediate risk. This may occur where there
is, or is a risk of, serious and imminent danger
and:
| (a) |
it
is not possible for us to contact the other
authority in time (nb. not in the time it
takes them to respond); or |
| (b) |
the
legislation enforced by the other authority
does not provide adequate powers for that
authority to take immediate action (NB intervention
should not extend to matters which are more
properly the concern of the other authority). |
|
In
such cases inspectors should consider taking enforcement
action to control the immediate risk, for example
by issuing a Prohibition Notice or using their
powers under s.25 HSWA. But before becoming involved:
| (a) |
a
senior officer (normally Band 1 in HSE)
should, where possible, be consulted; and |
| (b) |
agreement should, where possible, be sought
from the other authority. Where this is
not possible the matter should be referred
to that authority as soon as possible afterwards.
|
|
| Inspectors'
actions should be limited to checking any compliance
with any Notice they have issued and to assuring
themselves that the other authority has received
their advice and acknowledged its responsibility
for follow up. The policy lead, and operational
inspectorate, should also consider what longer
term action is necessary to ensure the gap is
filled, thus removing the need, so far as possible,
for us to enforce s.3 HSWA in this area in future
e.g. an MoU with the other authority. |
CCA's
involvement
The HSE has made no formal announcement of its
change in policy.
The CCA only came to know that a detailed new policy
had been established when the CCA’s ‘Work-Related
Death Advice Service’, on behalf of a bereaved
relative, asked the HSE the reasons for why it was
refusing to investigate the death of a member of the
public.
The
change in policy was indicated in HSC's consultation
document on a new strategy. This stated that:
The
strategy also signals our intention to concentrate
on activities directly related to work and a determined
move away from areas that are better regulated by
others or by other means – including civil
law. HSE will not be proactive in enforcing in those
areas of public safety where others have regulatory
responsibilities or where legal remedies under the
Health and Safety at Work Act have been used in
the absence of more specific legislation. It will
promote a debate about where gaps need to be filled
by others and by other means.
The
final Strategy Statement - published in March 2004
- said:
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.
It
is interesting to note that this new Operational Circular
was in force before the end of the Strategy Statement's
consultation period which was 1 December.
To
download the old policy, click here
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