Embargoed: 0600 a.m. Friday, 25 June 2004

HSE's Restrictive Policy on Public Safety "Unlawful" says legal advice

The Health and Safety Executive's new policy on public safety - which stops HSE inspectors enforcing public safety duties upon employers in certain circumstances - is "unlawful" says a legal opinion obtained by the Centre for Corporate Accountability.

The legal opinion has been given by two public law specialists, barrister Michael Fordham - one of Britain's top barristers in the field - and John Halford from the solicitors, Bindman and Partners. It was sought by the Centre for Corporate Accountability after the HSE refused to investigate a number of deaths of members of public. To read initial press release, click here

The CCA has written to the Director General of the Health and Safety Executive asking how it intends to respond to the advice and, if it does not intend to suspend the policy, to give its reasons for not doing so.

David Bergman, Director of the Centre for Corporate Accountability said:

"We are concerned that the HSE introduced a policy which we are now advised is 'unlawful'. The HSE has very important responsibilities in enforcing the public safety obligations that are imposed upon employers. We are advised that the law simply does not allow the HSE to make a policy decision to discard these responsibilities."

The reasons why the lawyers consider the policy to be 'unlawful' is that they consider it to be "ultra vires" - which means that the HSE does not have the legal power to institute such a policy. This is because of section 18 of the Health and Safety at Work Act 1974 which requires the HSE to "make adequate arrangements for the enforcement of the relevant statutory provisions". This includes section 3 of the Act which imposes a duty on "every employer" concerning the safety of "persons not in his employment who may be affected thereby".

HSE's policy however states that inspectors should not enforce section 3 of the Act in certain circumstances - and other bodies whom the HSE say should take their place do not have the same powers as HSE inspectors. To read what this means in practice, click here. To download a copy of the policy, click here

The legal opinion states that:

"Can the HSE lawfully restrict its functions in relation to section 3 by means of a policy of this kind? Our clear view is that it cannot and that the policy is ultra vires. It subverts (indeed reverses) the statutory scheme, circumvents the deliberate deferral mechanisms in the 1974 Act (which do allow responsibility to be shifted from the HSE to other bodies within strict statutory parameters), and abdicates statutory responsibility for the proactive and important duty which HSE is charged with enforcing."

The lawyers state that not only is the policy "unlawful", but that individual decisions by the HSE not to inspect or investigate certain public safety matters "are extremely likely" to be "unlawful" and may in certain cases be in breach of the Human Rights Act 1998. The legal opinion states:

"Will the policy lead to unlawful decisions in practice ? In our view, it is extremely likely to have that effect and such decisions will be amenable to legal challenge (including by judicial review). In addition to the problems identified ... above which will arise when the HSE refuses to investigate or take enforcement action in reliance on the policy, certain (though not all) cases will also raise questions about state compliance with Article 2 of the European Convention on Human Rights and, in turn, whether the HSE has failed to discharge its duty under section 6 of the Human Rights Act 1998 ('HRA') to exercise its functions in a way which ensures such compliance. Where Article 2 is engaged, the Courts will need to take the possibility of a breach into account when construing the 1974 Act under section 3 of the HRA. "

To download the full legal opinion, click here

John Halford, specialist public law solicitor at Bindman and Partners states that:

"The new policy has a number of problems legally. First, the HSE has no power to shed its statutory duties using a policy - yet that is exactly what this policy purports to do. These are not trivial or incidental duties either. They are concerned with the HSE's enforcement of the key duty that businesses and public authorities owe ordinary members of the public who may be at risk from their activities. That is a duty to keep in place a meaningful safety standard. Whilst the policy remains in place, this duty will not be policed or enforced as Parliament intended.

Second, in the narrow circumstances in which the HSE is allowed to delegate its job to others, the arrangements must be "adequate". That should mean any such arrangements for investigation, intervention, enforcement and prosecution operate just well as they would if HSE inspectors were on the case. But the policy says that other bodies should do the HSE's job without its tools: many of those identified as "more appropriate" when it comes to investigation, have no investigatory powers. Few have anything similar to the enforcement or intervention powers of the HSE. None can prosecute without the DPP's special permission.

Third, the policy raises real questions about whether the HSE takes its Human Rights responsibilities seriously. Enforcement of the section 3 safety standard, backed up with the threat of criminal prosecution, is one of the ways the UK ensures life is "protected by law". This is required by Article 2 of the European Convention on Human Rights and now the Human Rights Act. But if the HSE refuses to investigate and prosecute, and no other body can or will do so, the protection of the right to life becomes empty and hollow.

This policy ties the hands of the HSE's inspectors and stops them from doing a vital part of their job - protecting the public. If it is not withdrawn, legal challenges are inevitable."

What is the policy all about?

In order to save money and focus on worker safety issues - rather than public safety issues - the HSE instituted this new policy, which became operative in November 2003.

In its new strategy statement, "2010 and beyond", published in March 2004, the HSC says:

"HSE will determinedly move away from intervening in those areas of public safety that are better regulated by others or by other means ...".

The new HSE policy itself reflects this statement by saying that when there is a more appropriate alternative regulator, then - in certain circumstances - the HSE will no longer investigate a death or injury of a member of the public. Nor will inspectors involve themselves assessing these public safety issues when undertaking inspections

However, many of those bodies which the HSE consider to more appropriate regulators do not have the same powers as the HSE to inspect premises, investigate deaths, impose enforcement notices or prosecute for breach of section 3 of the Health and Safety at Work Act or other appropriate legislation.

What this means in practice
Hospitals: So for example, when there is a death in a hospital which may be the result of inadequate working practice, poor training etc, the HSE will not investigate this incident even though had such an investigation taken place a breach of section 3 of the HASAW Act would have been identified requiring the imposition of enforcement notices or prosecution. The HSE say that there are other bodies who are better placed and point to the Commission for Health Improvement; however this body does not investigate deaths.

The HSE are also saying that when they inspect hospitals they will not assess the adequacy of working practice issues involving clinical care

Police/Prison Custody: When there is a death in police custody or a death in a prison or psychiatric hospital, this may be the result of inadequate working practices of the institution. The HSE says that they will not investigate such incidents to determine whether health and safety offences since there are other relevant bodies like the police, police complaints authority and ..... None of these bodies, however, assess the adequacy of working practices.

Again, the HSE are saying, when they undertake inspections into police forces, prisons, psychiatric institutions, the HSE will not assess the adequacy of working practices when these practices solely relate to the safety of members of the public (in contrast to workers)

Local Authorities: Local Authorities are responsible for many activities that impact upon members of the public. These includes sports canter, swimming activities, coast lifeguards, social services etc. If any of these activities result in death or injury the HSE will not investigate if there is any other agency that has some regulatory role over the activity even if that regulator does not have the same powers or remit as the HSE.

No Regulatory Body: When there is no alternative regulatory agency, the HSE will only investigate when the following limited circumstances exist:

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To read a detailed briefing about the policy, click here