Bill Callaghan,
Chair, Health and Safety Commission
Rose Court,
2 Southwark Bridge,
London SE1

28 June, 2001

Dear Mr Callaghan,

The Cullen Report and the HSC's Enforcement Policy Statement

I am writing about the implications of the Cullen report to the proposed text of HSC's Enforcement Policy Statement.

It is our view that the criticisms by Jenny Bacon of the manner in which HMRI enforced safety law - criticisms which were endorsed by Lord Cullen - have important implications for the Enforcement Policy Statement which you are currently considering.

Lord Cullen's Report
Lord Cullen summarises Jenny Bacon's evidence by stating that "more could have been done to enforce health and safety legislation". He then stated at para 10.18 that:

"Miss Bacon attributed these deficiencies to three causes:
(i) a lack of resources on the part of the HMRI;
(ii) a lack of vigour by the HMRI in pursuing issues; and
(iii) the placing of too much trust in the duty holders."

It is our view that had there been a similar independent inquiry into each of the 300 plus work-related deaths that took place last year, a similar set of conclusions would have been appropriate in relation to many if not most of them.

Putting to one side the issue of resources - which is obviously key but which does not directly effect the text of the Enforcement Policy Statement - the key concerns are a "lack of vigour" and "the placing of too much trust in the duty holders".

In relation to the "lack of vigour", Lord Cullen stated that, "this is plainly a matter which is wholly within the control of management. It is for management to learn the lessons of what has taken place in the past." Here, he is referring to HSE Management.

In relation to the question of "Trust", Jenny Bacon stated:

"People that I have spoken to who have been listening to witness evidence and have read transcripts, I think have been quite shocked is not too strong a word at the degree to which they think that to some extent they have had wool pulled over their eyes or have simply not been kept in touch."

HSC'S ENFORCEMENT POLICY STATEMENT
As you know the key text that determines the way in which the HSE enforces safety law is the "Enforcement Policy Statement". It is primarily here, within this statement, backed up by internal instructions that HSE can ensure that safety law is enforced with 'more vigour" and can ensure that the inspectors do no place "too much trust" in the duty holders.

In our view, the Cullen Inquiry should result in the following key changes to the current enforcement policy statement:

• less discretion on the part of inspectors;
• an increased use of formal methods of ensuring enforcement of the law;

Use of Preventative Powers: The current enforcement policy statement does not contain any statement about when HSE inspectors should either (i) provide oral advice, or (ii) provide written advice or (iii) impose an improvement notice or (iv) impose a prohibition notice.

The absence of any guidance provides inspectors with total discretion as to when should provide oral advice or when they should impose a prohibition notice. For example, although HSE management would expect, and indeed assume, that inspectors do impose a prohibition notice when the circumstances justify it, there is no instruction to ensure that this does take place; it is therefore possible for an inspector to assume that although a prohibition notice could be imposed, it would be sufficient, for one reason or another, to instead provide oral or written advice. This discretion and lack of clear guidance allows, in Jenny Bacon's words for wool to be "pulled over the eyes" of inspectors and indeed allows accusations of a "lack of vigour" on the part of HSE.

The same can be said for improvement notices. The lack of guidance allows inspectors to provide oral or written advice where an improvement notice is more appropriate. As Jenny Bacon stated:

"Where we were told things were going to happen .. [w]e took that on trust and did not issue and improvement notice. … With the benefit of hindsight, it might have been a good thing if we had done so."

In our view therefore, there is good reason to ensure that the new Enforcement Policy Statement includes the following paragraph:

If during the course of an inspection or an investigation into a reported incident, an inspector neither discovers contraventions of health and safety law nor circumstances which involve a risk of serious injury, but still considers that the duty holder could gain from further guidance on best health and safety practice, an inspector should provide the employer advice orally or/and in writing. Any oral advice should be followed up in writing.

If an inspector does identify a breach of health and safety law, the inspector should impose an improvement notice unless the inspector is of the view that the breach is a minor infringement of health and safety law which does not pose a risk to the health and safety of a worker or member of the public. Oral or written advice in such circumstances is not enough. However, an inspector as well as imposing an improvement notice can in addition provide any oral or written advice the inspector considers necessary.

If an inspector believes the activities of the duty holder pose "a risk of serious personal injury" then the inspector should always impose a prohibition notice.

As you know, this is the paragraph - amended by our letter to Terry Gates - that was contained in our proposed Enforcement Policy Statement that formed part of our response to your consultation document. It is our view that the Cullen report supports this approach.

Responding to a criminal offence: As you know it is the Centre's view that there needs to be a clearer and stricter set of guidance given to inspectors as to when to either prosecute, issue formal cautions or provide written warnings.

The Cullen Inquiry does not refer to HSC's Prosecution Policy, but its criticism of the lack of vigour in relation to enforcement implies a failure on the part of the HSE to consider a proper response to a criminal offence.

In our view prosecution is appropriate when:

• when death, serious injury or disease was a cause of a breach of law;
• when there was a breach of health and safety law;
• when there has been a history of non-compliance with health and safety law;

The new Enforcement Policy Statement should therefore include the following paragraphs:

"Where a criminal offence has also been committed, then in addition to any preventative action, the enforcing authorities must consider whether to prosecute, issue a formal caution or issue a written warning.

The Commission expects that enforcing authorities will normally prosecute, or recommend prosecution, where following an investigation or other regulatory contact, the following circumstances apply:

• death or serious injury or disease was a result of a breach of the legislation;
• there has been a serious breach of health and safety law falling far below what could reasonably be expected;
• there has been reckless disregard of health and safety requirements;
• there have been repeated breaches or persistent poor compliance indicated, amongst other things, by previous written warnings or formal cautions
• there has been a failure to comply with a written warning or an improvement or prohibition notice
• work has been carried out without or in serious breach of an appropriate license.

  The Commission also expects that enforcing authorities will consider prosecution or consider recommending prosecution where following an investigation or other regulatory contact:
  o it is appropriate in the circumstances as a way to draw general attention to the need for compliance with the law and the maintenance of standards required by law and conviction may deter others from similar failures to comply with the law.

  When an offence has been committed, and the enforcing authorities decide not to prosecute, they should either issue a formal caution or a written warning. A Formal Caution is more serious than a written warning. In deciding which of these two should be issued, the enforcing authorities should consider the following factors:

• the safety record of the company;

• the level of any harm that has been caused, and

• the seriousness of the breach.

I hope that the Health and Safety Commission will give serious consideration to the Cullen report and how it impacts upon the Enforcement Policy Statement. It is important that the report has implications not only to railway safety but to safety in all industries.

Yours sincerely,

David Bergman
DIRECTOR

Cc:
Owen Tudor, HSC
George Brumwell. HSC
Mr Sonny Hamid, HSC
Joyce Edmond Smith, HSC
Margaret Burns, HSC
Maureen Rooney, HSC
Judith Donoven, HSC
Rex Symons, HSC
Abdul Chowdry, HSC
Tim Walker, Director General HSE
Terry Gates, HSE Policy Division
Mel Draper. HSE, Policy Division
Peter Graham, Director, Strategy and Annalytical Support Directorate