| Department
of Environment, Transport and the Regions Consultation
on "Revitalising Health and Safety (July 1999)
In 1999, John Prescott, the
Minister in charge of the then Department of Environment.
Transport and the Regions, launched this consultation
to mark the 25th anniversary of the Health and Safety
at Work Act 1974.
The "strategic appraisal"
aimed to:
- inject new impetus into
the health and safety agenda;
- identify new approaches
to reduce further rates of accidents and ill-health
caused by work, especially approaches relevant to
small firms;
- ensure that our approach
to health and safety regulation remains relevant
for the changing world of work over the next 25
years; and
- gain maximum benefit from
links between occupational health and safety and
other Government programmes.
DETR Document
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CCA Response
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DETR "Strategy Statement"
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CCA Press Release
Key
"Action Points" of interest to CCA Work
HSC
Project Plan
This document sets out what work the HSC has done
in relation to the various 'action points'
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HSC Targets
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REPORTING
Action Point 2
The Health and Safety Commission will promote publication
of guidance, by March 2001, to allow large businesses
to report publicly to a common standard on health
and safety issues. The Government and the Health and
Safety Commission challenge the top 350 businesses
to report to these standards by the end of 2002, and
will then work to extend this to all businesses with
more than 250 employees by 2004.
| 42. |
An analysis of health an
safety coverage in the annual reports of companies
in the FTSE 100 was carried out by the charity
'Disaster Action' in 1996. This showed that roughly
half of these reports covered health and safety
in some way, with wide variation in the quality
of reporting. |
| 43. |
In line with the approach
adopted on environmental reporting, were there
are some excellent examples, Ministers wish to
seek to encourage more widespread reporting on
a voluntary basis in the first instance. However,
Ministers are minded to move to a compulsory regime
if good progress is not made against this action
point. |
| 44. |
It is anticipated that
the new guidance on annual reporting will encourage
companies to include details of their health and
safety policies, numbers of reported incidents
and details of any enforcement action. Ministers
attach particular importance to details of prosecutions
, fines and statutory notices being made public.
Many of the unions responding to our consultation
argued for auditable standards for reporting the
costs of health and safety failures and the benefits
of health and safety failures and the benefits
of health and safety interventions. The feasibility
of this proposal will be considered in working
up guidance. |
| 45. |
The Royal society for the
Prevention of Accident is taking forward a new
initiative called Director Action on Safety and
Health (DASH). One aspect of this work is to be
a consultation on encouraging best practice in
measurement and reporting (both internally and
externally) of health and safety performance and
plans. |
| 46. |
The Company Law Review,
which includes within its remit an examination
of the legal framework for company accounting,
reporting and disclosure, may also make proposals
relevent to company reporting on health and safety.
The Review, which was launched by the Department
of Trade and Industry in 1998, is overseen by
a steering group of independent experts. It is
due to make its final report in Spring 2001 |
Action point 3
The Health and Safety Commission will undertake a
fundamental review of the health and safety incident
reporting regulations.
| 47. |
The Reporting of Injuries,
Diseases and Dangerous Occurrences Regulations
1995 (RIDDOR) came into force in April 1996. These
Regulations simplified injury definitions, introduced
new plain English report forms, and enabled the
Health and Safety Executive to pilot arrangements
for telephone reporting of accidents in Scotland.
Plans are being laid, subject to resources being
made available, for an integrated call centre
which will enable all employers to report incidents
by telephone, fax or Internet. |
| 48. |
While nearly all workplace
fatalities are reported, only 47% of reportable
incidents generally are reported to the Health
and Safety Executive or local authorities. The
review of the reporting regulations will look
in particular at the needs of the Health and Safety
Executive and local authorities for the information
currently collected; investigate why employers
do not report accidents and the near misses they
are required to report; and the possibilities
for 'joined up' information and communications
strategies with others in the public service to
get across the reporting message to employers. |
| 49. |
A related issue is the
quality of investigation by employers when incidents
occur, to ensure that lessons are learned and
risks are better controlled in future. The Health
and Safety Commission has recently sought views
on the introduction of a specific duty on employers
to investigate accidents. It is considering a
consultative document with specific proposals
to change the law. Leading-edge employers, large
and small, already conduct detailed investigations
of all incidents including near misses, as a powerful
catalyst for improved future performance. Our
vision for the future is far wider propagation
of such best practice approaches. |
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Penalties
Action Point 7
The Government will seek
an early legislative opportunity, as Parliamentary
time allows, to provide the Courts with greater sentencing
powers for health and safety crimes. The key measures
envisaged are to extend the £20,000 maximum
fine in the lower courts to a much wider range of
offences which currently attract a maximum penalty
of £5000; and to provide the courts with the
power to imprison for most health and safety offences.
Action Point 8
The Health and Safety Executive
will monitor and draw public attention to trends in
prosecution, convictions and penalties imposed by
the courts, by publishing a special annual report.
This will 'name and shame' companies and individuals
convicted in the previous twelve months. This information
will also be available on the Health and Safety Executive's
Website.
| 58. |
The consultation document
stated that the Government was considering whether
to make imprisonment available to the courts for
all health and safety offences, and whether the
maximum fine for breaches on summary conviction
should be increased for offences under the 1974
Act. The overwhelming view of consultees was that
the general level of penalties imposed by the
courts is inadequate: only 7% considered that
the current framework for penalties was satisfactory.
Many also argued that more publicity needed to
be secured for successful prosecutions. In the
light of future trends in sentencing, the Government
will consider a referral of health and safety
offences to the independent Sentencing Advisory
Panel. |
| 59. |
The Government sees a strong
case for strengthening the sentencing powers available
to the courts and intends to legislate for this
as soon as Parliamentary time allows. A Government
handout Bill (the Health and Safety at Work (Offences)
Bill), following this session's Private Members'
ballot, has already been introduced in Parliament
which would increase the maximum lower court fines
and make imprisonment more widely available. The
Bill would also increase the penalty for the main
offence under the Employers' Liability (Compulsory
Insurance) Act 1969, and extend the time limit
on bringing prosecutions for such an offence. |
Marking the launch of the joint
TUC - British Safety Council report on health and
safety penalties in December 1999, the Lord Chancellor
said: "I am confident that the Criminal Courts
will play a full part in generating greater public
awareness of the importance of health and safety issues;
and in ensuring that the Courts come down hard on
those who breach health and safety legislation."
While stressing that only the magistrates and judges
could do justice in the particular circumstances of
the cases before them, the Lord Chancellor said that
they should not flinch from using the maximum penalties,
including imprisonment where appropriate.
Action point 9
The Health and Safety Commission
will advise Ministers on the feasibility of consultees'
proposals for more innovative penalties.
| 60. |
Many consultees suggested
that a more innovative approach to penalties might
be more effective in changing companies' behavior.
Among the specific proposals which the Health
and Safety Commission will consider are:
o fines linked to the turnover or profit of a
company;
o prohibition of Director bonuses for a fixed
period;
o suspension of managers without pay;
o suspended sentences pending remedial action;
o compulsory health and safety training;
o penalty point system on the drivers' licence
model;
o fixed penalty notices for specific offences;
o deferred prohibition notices on welfare issues. |
| 61. |
A further popular suggestion
was that community service related to health and
safety might be an appropriate penalty in some
cases. Community service orders can, and have
been, imposed by the courts following health and
safety convictions. The Health and Safety Commission
will consider as part of this project what effect
the community service approach has had and whether
there might be scope for its wider use. |
Action point 10
The Government will consider an amendment to the 1974
Act (when Parliamentary time allows) to enable private
prosecutions in England and Wales to proceed without
the consent of the Director of Public Prosecutions.
| 62. |
The Law Commission published
a report on 20 October 1998 entitled Consents
to Prosecution. This report found anomalies in
the list of offences requiring the consent of
the Director of Public Prosecutions, arguing that
these made substantial inroads into the ordinary
individual's right to set the criminal law in
motion. Though health and safety offences were
not intended to be within the scope of the report,
the same principles have a bearing on the position
under the 1974 Act. |
| 63. |
The Law Commission recommended
that consent provisions should exist only for
three categories of offences: where a defendant
could contend that prosecution would violate the
European Convention on Human Rights; where national
security or an international element is involved;
or where there is a high risk that the right of
private prosecution will be abused and cause the
defendant irreparable harm. The Law Commission
concluded against pursuing their provisional proposal
for consent provisions where civil proceedings
are available in respect of the same conduct. |
| 64. |
The Law Commission recommends
that all consent provisions, which fall outside
these categories, be dispensed. The powers of
the Attorney General to prevent vexatious proceedings
from commencing or to terminate them, and the
powers of the Director of Public Prosecutions
to take over and discontinue, proceedings, remain.
The Director of Public Prosecutions has to date
received no more than a handful of applications
in relation to health and safety offences, all
of which have been rejected. Such a reform would,
though, need to guard against any vexatious prosecutions
skewing action away from protection of the most
vulnerable. |
Corporate Responsibility
and the role of Directors and Responsible persons
of similar Status.
| 65. |
There has been growing
public concern that the existing offence of corporate
manslaughter is flawed. Following the Southall
Rail crash in 1997 which resulted in 7 deaths
and 151 injuries, Mr Justice Scott ruled that
a charge of manslaughter could not succeed because
of the need to 'identify some person whose gross
negligence was that of Great Western Trains itself".
Similarly, prosecution against 7 individuals and
the company following the Herald of Free Enterprise
disaster in 1987 failed because the "various
acts of negligence could not be aggregated and
attributed to any individual who was a directing
mind". In the history of English law there
have been only three successful prosecutions for
corporate manslaughter, all against small companies. |
| 66. |
The Law Commission recommended
that a special offence of 'corporate killing'
should be created. In cases where management arrangements
had failed to ensure the health and safety of
workers or the public, a death would be regarded
as having been caused by the conduct by the conduct
of the corporation. Individuals within a company
could still be liable for the offences of reckless
killing and killing by gross carelessness, as
well as the company being liable for the offence
of corporate killing. Directors and managers can
also be prosecuted under section 37 of the Health
and Safety at Work Act 1974 if an offence committed
with their consent or connivance, or is attributable
to neglect on their part. |
| 67. |
The Home Office published
on 23 May 2000 a consultation document on involuntary
manslaughter with a view to implementing the law
Commission Recommendations on a new "corporate
killing" offence in England and Wales. The
Consultation document covers the issue of corporate
liability and the extent to which Directors should
be personally liable. The Scottish Executive will
consider whether, in light of the proposals in
England and Wales, any changes are needed to Scottish
Law. |
| 68. |
Many consultees considered
that greater prominence for health and safety
issues at board level was the key to raising standards.
Responses from health and safety practitioners
p[pointed unanimously to the perception of a low
profile for their profession with little support
from senior management. |
Back
Action
Point 11
The Health and Safety Commission will develop a code
of practice on Directors' responsibilities for health
and safety, in conjunction with stakeholders. It is
intended that the code of practice will, in particular,
stipulate that organisations should appoint an individual
Director for health and safety, or responsible person
of similar status (for example in organisations where
there is no board of Directors).
The Health and Safety Commission
will also advise Ministers on how the law would need
to be changed to make these responsibilities statutory
so that Directors and responsible persons of similar
status are clear about what is expected of them in
their management of health and safety. It is the intention
of Ministers, when Parliamentary time allows, to introduce
legislation on these responsibilities."
| 69. |
Health and Safety Executive
guidance confirms that, in organisations that
are good at managing health and safety , health
and safety is a board room issue and a board
member takes direct responsibility for the co-ordination
of effort. Ministers and the Health and Safety
Commission attach importance to ensuring that
organisations appoint an individual director
for health and safety or a responsible person
of similar status
The Royal Society for
the Prevention of Accidents (RoSPA) launched
a new initiative called Director Action on Safety
and Health (DASH) on 27 October 1999. This will
seek to co-ordinate a programme of activities
involving key stakeholders aimed at encouraging
more effective involvement of Directors.
|
| 70. |
Health and Safety management
needs to be set firmly in the wider context of
corporate Governance and corporate social responsibility.
Guidance on the internal control requirements
of the Combined Code on Corporate Governance,
developed by a working party under the chairmanship
of Nigel Turnball, was published by the Institute
of Chartered Accountants in September 1999. The
guidance is intended to ensure that the board
is aware of the significant risks faced by their
company and the procedures in place to manage
them. Boards of directors are called on to review
regularly reports on the effectiveness of the
system of internal control in managing key risks,
and to undertake an annual assessment for the
purpose of making their statements on internal
control in the annual report. |
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Crown
Immunity
Action Point 15
The Government will seek
a legislative opportunity, when Parliamentary time
allows, to remove Crown immunity from statutory health
and safety enforcement. Until immunity is removed,
the relevant Minister will be advised whenever Crown
censures are made.
| 72. |
Crown bodies have always
been exempt from provisions in health and safety
law for prosecutions and statutory prohibition/improvement
notices. The Health and Safety Executive currently
enforces health and safety in Crown bodies by
means of non-statutory improvement and prohibition
notices. When, but for Crown immunity, the Health
and Safety Executive would have prosecuted, there
are agreed arrangements for recording a Crown
censure against the Crown body concerned. |
| 73. |
The Health and Safety Commission
will advise Ministers on the range of options
for introducing statutory health and safety enforcement
against Crown bodies. The Food Safety Act 1990
offers a possible model. This provides for statutory
improvement and prohibition notices against Crown
bodies and, in lieu of prosecution, the power
to seek a High Court (or, in Scotland, Court of
Session) declaration of non-compliance. In the
meantime, the Cabinet Office in consultation with
the Health and Safety Executive is to issue new
guidance to departments and agencies on the procedures
for enforcing health and safety requirements in
Crown bodies. |
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Workers
and the HSE
Action point 18
The Health and Safety Executive will take further
action to publicise the right of workers to contact
them, particularly in the context of the new protection
provided by the Public Interest Disclosure Act 1998.
| 86. |
The Public Interest Disclosure
Act 1998 provides additional protection for 'whistleblowers'.
It is only right that people who come forward
to expose the practices of irresponsible employers
are afforded every possible protection from victimisation. |
| 87. |
Listening to workers' concerns
and ensuring that incidents are properly reported
to the enforcing authorities should be integral
to employers' health and safety arrangements.
But all workers have the right, where they feel
that their employers have not paid proper regard
to their health or safety, to contact their health
and safety enforcing authority. Workers can make
their views known in confidence, if they wish,
and the enforcing authorities will do everything
possible to protect their anonymity. Workers'
right to contact enforcing authorities is publicised
in the new Health and Safety Law poster and leaflet,
and on the Health and Safety Executive's website.
The Health and Safety Executive will continue
to seek further opportunities to publicise this
message, for example in other relevant publications
and leaflets. |
| 88. |
More than 30,000 workers
contacted the Health and Safety Executive last
year. Around half of these complaints were found
to be justified on investigation. The results
of the 'whistleblowers' pilot telephone line indicates
that about a quarter of such justified complaints
involve serious risks to health and safety requiring
priority action. |
Modernising Government: HSC
and Open Government
| 130. |
The Modernising Government
White Paper highlights the importance of delivering
policies and services, which are co-ordinated
for the convenience of the customer, not for the
convenience of the agencies involved. This demands
a customer-based outward-looking focus. |
|
131.
|
The Government and the
Health and Safety Commission recognise and value
the expertise of the Health and Safety Executive's
staff and of local government enforcers. It will
be crucial to safeguard this resource in taking
forward a programme of modernisation, and indeed
to overcome current difficulties in recruiting
and retaining staff in key specialisations. |
| 132. |
The Health and Safety Commission
has adopted as a strategic theme improving their
openness and accountability, in particular through
preparation for the Freedom of Information Act
and the adoption of Service First principles of
public service delivery. |
Back
Open
Government
Action point 38
The Health and Safety Commission will hold some meetings
in public each year.
Action point 39
To enable greater openness, the Health and Safety
Commission aims to take the opportunity presented
by powers in the Freedom of Information Bill to remove
restrictions on disclosure of information imposed
by Section 28 of the Health and Safety at Work etc.
Act 1974.
| 133. |
The Health and Safety Executive
has a policy of openness with health and safety
information except where the law prohibits disclosure
or where significant harm would result, for example
to the ability to regulate and enforce the law.
At present, moves towards greater openness in
line with this policy are constrained by the blanket
statutory restriction on disclosure of certain
information imposed by Section 28 of the Health
and Safety at Work etc. Act 1974. Powers in the
Freedom of Information Bill enable these blanket
restrictions to be removed or amended, and its
provisions allow a policy of withholding information
only where release would cause significant harm |
Organisational issues
| 140. |
Without changing the broad
current legislative structure, we have identified
five areas where there may be a case for organisational
change within the Health and Safety Commission
and Executive in order to deliver this Action
Plan:
- In the section on
engaging small firms, we pointed to the reluctance
of small firms to contact the Health and Safety
Executive or local authorities for advice,
for fear of enforcement action. The new Small
Business Service is intended to go at least
some way to addressing this problem, by providing
a one-stop shop for advice and information,
entirely separate from any Government enforcement
function. However, there may also be a case
for organisational separation within the Health
and Safety Executive of information and advice
services from inspection and enforcement functions;
- The Government is
considering, in the context of its Transport
Safety Review, whether there is a case for
greater separation between investigative and
regulatory functions in the transport sector.
This review will not be concluded until after
the Cullen Report, but has wider implications
for health and safety. The aim of greater
separation would be to ensure that investigators
do not shy away from any valid criticism of
the regulator. There may be a case for a clearly
differentiated 'Investigation Unit' to investigate
major incidents in other industrial sectors
for which the Health and Safety Executive
has safety responsibility, able to draw in
expertise from the regulator, the private
sector and academics;
- The respective roles
of the Commission and Executive are still
not sufficiently understood. The Government
recognises that greater clarity is required,
and that the Commission's capacity for strategic
policy development should be strengthened;
- Some have voiced concern
that current arrangements, whereby inspectors
themselves prosecute cases through the courts,
may not provide for the most efficient use
of inspectors' valuable time. Others would
argue that, as a matter of principle, the
functions of investigation and prosecution
should be separate. The Government sees no
easy way of addressing this issue in the short
term, but believes that alternative arrangements
may warrant further consideration;
- The Government are
concerned at the relatively low level of prosecutions
and have asked the Health and Safety Commission
and Executive to consider how their existing
prosecution system can be strengthened, taking
into account the approaches of other regulatory
bodies such as the Environment Agency.
|
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Action
point 44
The Government and the Health and Safety Commission
and Executive will work together to explore options
for organisational change to address these issues..
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