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28
January 2005
Health
and Safety Commission’s language of Enforcement
‘misleading’ says CCA
The wording that the Health and Safety Commission
(HSC) uses to describe the circumstances in which
it will enforce health and safety law is “misleading
and needs amending”, the Centre for Corporate
Accountability have said in a letter to the HSC.
The CCA is concerned that the HSC implies in a number
of key strategy documents that only those who "wilfully
disregard the law” will have formal enforcement
action taken against them. It argues that this language
fails to reflect HSC's actual policy in which formal
enforcement is supposed takes place in a much wider
set of circumstances.
The CCA is concerned that the implication that the
enforcement will take place in only very limited circumstances
does “not assist in [HSC’s] endeavors to
deter dutyholders from breaking the law.”
David
Bergman, Director of the CCA said:
"The
way in which the HSC presents its enforcement policy
is crucial to how it is perceived by business and,
to imply, as we think the HSC does, that it will
only impose enforcement notices or prosecute
when companies or individuals intend to breach health
and safety is problematic, when supposedly formal
enforcement should take place in a much wider set
of circumstances."
In
a response, the Bill Callaghan, the Chair of the HSC,
denies that the use of this term is misleading. “We
do want to be tough on those who willfully disregard
the law but there is nothing in that statement which
says or, in my view implies that we will not continue
to enforce in other circumstances.”
In its Strategy Document, “2010 and Beyond”,
the HSC states:
“We
want to develop channels of support and advice that
can be accessed without fear of enforcement action
while allowing the regulators to continue to be
tough on those who wilfully disregard the law.”
(emphasis added)
And
in its September 2004 statement on Providing Accessible
Advice and Assistance, it is stated
“This
is not about reordering the balance of advisory
and enforcement roles, it’s about making them
more effective. We want to improve the targeting
of both to improve the effectiveness of the advisory
role and to allow us to continue to be tough on
those who wilfully disregard the law.”
(emphasis added)
In
its letter, the CCA stated:
“It
is clear from HSC’s Enforcement Management
Model (EMM) that improvement and prohibition notices
will be imposed irrespective of whether or not the
duty holders are in ‘wilful disregard of the
law’. In fact, para 11 (section 2) of the EMM
makes clear that inspectors should use their powers
to impose a prohibition notice simply on the basis
that the circumstances create ‘a risk of serious
personal injury’. No more and no less. The
wilfulness or not of the dutyholder is totally irrelevant
to this question.
In relation to improvement notices, the EMM indicates
that improvement notices should be imposed in most
cases if the gap between the ‘actual risk’
(the risk created by the dutyholder) and what the
risk should be, is either ‘substantial’
or ‘extreme’. This test does not require
evidence of ‘wilfulness’ on the duty holders
part. If such a situation exists, any potential
evidence of ‘wilfulness’ (that may be
indicated in that previous enforcement action had
been taken, or there has been a history of previous
incidents, or that the dutyholder was in breach
for the purpose of commercial gain) will only result
in inspectors not only imposing an improvement notice
but also prosecuting.
Furthermore the EMM makes clear that prosecution
should take place in most situations where the risk
gap is ‘extreme’ – again irrespective
of any evidence of ‘wilfulness’. Section
39 of HSC’s Enforcement Policy Statement sets
out nine criteria where prosecution will be expected.
Two of these do require evidence of wilfulness or
intention - the wilful supply of false information
and the intentional obstruction of an inspector.
However, the other seven do not require such evidence,
though it may assist in satisfying the criteria."
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