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Westminster Legal Policy Forum - The future of health and safety regulation: in search of a common sense approach, 17th January 2012

Judith Hackitt CBE, HSE Chair

Implementation and Enforcement: the view from the regulator

Good morning everyone and thank you to the organisers for inviting me to come and speak to you today.

During the previous twelve months we have seen a number of very significant events and reviews that will have far reaching consequences as much for those who are actively involved in the world of health and safety as those affected by it. Most notable amongst the events that have brought this situation about have been the publication of the Government's report: Good Health and Safety; Good for Everyone; the several consultations that followed up on recommendations contained in Common Sense; Common Safety; and of course Professor Ragnar Loftstedt's review.

HSE has welcomed all of these reviews and we also continue to contribute to the work of the Red Tape Challenge that will reach its final stage for health and safety shortly with the Ministerial 'Star Chamber'. From the very outset, we have believed that it is legitimate and right that we explain what we do and why we do it, and take the opportunities presented by the reviews to consider how we can adapt and improve. The recommendations that have emerged thus far are sensible and I believe that they remain consistent with us achieving our core mission of preventing death, injury and ill health in Britain's workplaces.

In this forthcoming year, the challenges we now face are to continue our work to implement the aspects of the ambitious reform programme that have been detailed for us to deliver. HSE is committed to doing this and to engaging others as appropriate to help and support us in our work.

One of the chief reasons for this goes back to our strategy: Health and Safety in Great Britain in the 21st Century that was published in 2009 and called for everyone who had a stake in the health and safety system to be part of the solution. In particular, this means people taking responsibility and leadership to ensure that when managing health and safety risks they focus on the things that really matter, not trivia – that the actions that they take are proportionate to the risks that they are facing and that there is a shift in mindset towards one that prioritises enabling things to happen over creating bureaucratic obstacles that need to be overcome before activities can take place.

The strategy continues to be our road map through the whole process. What is changing and evolving, however, is how we go about delivering it.

So what do the changes and reforms mean in terms of delivering our core mission that I spoke about earlier?

As Professor Loftstedt has already explained, a headline finding was that one of the main problems lies less with health and safety legislation itself – this was found to be broadly right – and more with the way in some quarters the legislation is over-interpreted and applied. This approach is unsustainable and damaging in a number of ways which are important to us all:

Health and safety, done properly, has been shown to be a positive contributor to the bottom line allowing organisations to be run more productively - to be more enterprising and innovative.

Work has already been completed by HSE in some areas or is underway in others to start addressing this problem of 'over-interpretation'. This includes, amongst other things:

But for many of these changes to have maximum impact requires others who are part of the system to think about what it means for them and how they perform their role. We have all experienced situations where health and safety requirements are expressed in bureaucratic terms which go beyond legal requirement and common sense. But hopefully, we have also experienced a different approach; one that seeks to get people to understand what they need to do, why and what the proportionate way to managing the risk is. It’s clear which one has been shown to be most effective in the longer term.

The issue of actions being proportionate to risk will be an important feature of one of the other significant changes heralded by Professor Loftstedt’s review that will exempt from health and safety law those self-employed people whose work activities pose no risk of harm to others. We will need to work to raise awareness of what this does and doesn’t mean. One group who will not be exempt are those working in the construction sector, this is one area where the risk profile and the way the sector is structured means it would be inappropriate. But conversely, in other areas, especially where home-working is prevalent for those who are self employed– it doesn’t make sense for people to spend time worrying about meeting health and safety requirements when their workplace is clearly low-risk.

At the beginning of the year an independent regulatory challenge panel was formally launched. The panel is independent but also has members with significant regulatory experience, both from HSE, LAs and other regulatory bodies. The panel will consider complaints where it is felt formal advice relating to health and safety compliance given by HSE or LA inspectors is incorrect or goes beyond what is required to control the identified risk adequately. The cases reviewed by the panel will be made available via the website for others to see and learn from.

Later this year we will also be setting up a second supporting panel to perform a similar but less formal role in relation to nonsense stories and decisions which are made more generally in the name of "elf n safety" and which are the regular subject of media stories and mythology.

You'll see that the general theme emerging is one that is defined by a need for greater focus on and targeting on real risks and things that really matter. We are very much in favour of making life as easy as we can for those who want to do the right thing and are looking for help and advice on how to comply. But we are equally committed to ensuring that those who choose to ignore or avoid their legal obligations are held to account. As we target our activities, there will be a reduction in unannounced proactive inspections of those workplaces where there is no obvious reason to have concern. Our reactive work in response to incidents and complaints received will not change at all. Reactive work - including taking enforcement action wherever it's warranted - will continue unaffected, based on our well established incident selection criteria and complaints system.

We will make even greater use of evidence and intelligence to maintain effective engagement with those sectors where we stimulate and assist sector-led improvements through engagement and partnership, rather than inspection. We are already engaging key stakeholders in all of the sectors we regulate to draw up sector specific strategies that are firmly risk-based and deploy, what we believe to be, the most effective means of interaction and intervention.

We are continuing to develop the details of our proposals for fee for intervention. Having consulted on the proposal during 2011 we are now drafting detailed guidance on how the scheme will work in practice prior to its formal introduction. The intention, as I am sure many of you will be aware, is to charge for HSE time where and when an inspection identifies material fault. Again, we see this change of approach as being integral to further differentiating between those who are committed to doing the right thing and those who seek to gain commercial advantage and expose their employees to unacceptable risks.

As we in HSE move to an even more targeted approach to our interventions, it has become clear that to prevent inconsistencies across the regulatory landscape there is a need to extend that framework into areas regulated by Local Authorities. As a result, during 2012 we will be working with Local Authorities and organisations under the Better Regulation umbrella to ensure that the basis for interventions, whether they be inspections or enforcement action, are consistent. A lot of what Local Authorities already do is in line with this principle and we must also recognise that giving consideration to local priorities and particular risk factors is important. We will be working with Local Authorities to develop a legally binding framework which ensures consistency of approach to proactive and reactive work across the full spectrum.

HSE has welcomed the opportunity to participate in debates about reform of the health and safety system and we are committed to delivering on the activities which have been assigned to us. Britain is one of the safest and healthiest places to work in the world and it can continue to be so. But central to the achievement of this outcome, is the ability of all those who form part of the health and safety system to play their part by:

Updated 2012-01-19