HSE's Public Safsety Policy
- pre Nov 2003

HSE’s policy prior to November 2003 is contained 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 and many 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' judgment 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.

Papers 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 read more about 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, e.g. 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 Previous 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: