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CCA conference government agenda on enforcement

Judith Hackitt CBE, HSE Chair, 24 November 2008

Thank you for the invitation to speak at your conference today. I was unable to attend your conference last year as I was still very much in the throes of learning the ropes in my new role as Chair of HSE – but one year on I welcome this opportunity to share my thoughts with you – and to respond to points you may wish to make later.

Although it may often feel as if we are not in total harmony in our respective views, I think it is important for us to start this debate by acknowledging just how much common ground there is between our respective organisations.

Very soon now, HSE will launch its new strategy for Health and Safety in Great Britain in the 21st Century. The new strategy will state very clearly that our collective mission is the prevention of death, injury and ill health to those at work and those affected by work. I am absolutely confident that this is a truly common purpose which we share – prevention of future loss, injury and suffering is the primary goal of us all – where we may differ is in the most effective means to achieve this end.

HSE firmly believes that a combination of interventions including the provision of advice, guidance and support to dutyholders as well as appropriate use of enforcement powers provides the most effective regime. There is no convincing evidence that prosecution of every case of failure will deliver improved standards of protection for workers.

I speak from personal experience of more than 20 years working in industry and knowing that real safety culture and good health and safety performance comes from joint working between management and workforce and creating an environment where lessons can be learned – even from mistakes.

People in HSE also share with those of you involved in CCA and its allied organisations, first hand knowledge of the suffering and distress caused not only to those harmed by work but also to friends and work colleagues of those who are injured or worse. In addition to the role of adviser and enforcer, we should not forget that HSE often also find themselves in the role of front line contact with upset and grieving relatives.

In performing these various roles we are placed in a challenging position of striking the right balance – perhaps between sharing information with broader interested parties and seeking to respect the privacy/wishes of individuals or even to ensure the integrity of any potential legal proceedings.

We have recently welcomed the new sentencing provisions to be introduced in January 2009, that will give Courts the power to impose higher penalties as a deterrent to those businesses who fail to take their health and safety management responsibilities seriously.

We fully expect that the changes under the Health and Safety (Offences) Act 2008 will further encourage employers and other dutyholders to comply with the law as the maximum fines for all health and safety offences in magistrates courts have increased to £20,000. In addition, jail sentences for particularly blameworthy health and safety offences committed by individuals can now be imposed which will more accurately respond to the severity of those crimes and make a clear statement to others about the need to comply.

Before I go on to talk about our policy on enforcement, it is important to place what I am about to say within a broader context.

Since the introduction of the Health and Safety at Work etc Act back in 1974, we have been very successful in improving Great Britain’s Health and Safety performance. It may feel difficult to acknowledge that, given that we still see >200 people killed in work related accidents each year, around 28,000 people suffer serious injuries and > 2million suffering from illness either caused or made worse by work. We also, of course, live with the legacy and current concerns regarding work related cancer - of which asbestos continues to be the biggest single killer, claiming more than 4,000 lives every year. But we should not overlook the fact that our performance here in GB is consistently among the best in the world - and other countries do still look to us to learn from us what they perceive as best practice. 70% performance improvement over 30+ years is a good achievement and does provide us with a solid, proven health and safety system which needs improvement and refinement but which does not need radical revision and overhaul.

We have the lowest fatal injury rate (excluding road traffic related incidents during worktime) in Europe and our non fatal rate is the third lowest. The general trend in incidents long term continues to be downward albeit we would still like to see the rate of improvement increase. Being the best is no cause for complacency. Ill health is a more challenging issue to tackle and we need to continue our work to enforce improved control of toxic substances and other potential causes of ill health at source.

Our approach, which has been shown to be effective by our track record, is to target our work on the highest risks and to take a firm but fair approach based on the principles of our Enforcement Policy Statement. It therefore follows that we apply the firmest enforcement action ie prosecution to the most serious offences.

For us in HSE the purpose of enforcement is to:

In England and Wales we bring alleged offenders before the Courts directly and in Scotland we make recommendations for prosecution to the Procurator Fiscal.

Some of you may be aware of a recent announcement by the Lord Advocate’s office in Scotland to establish a dedicated procurator fiscal team to work with HSE on its prosecutions – this is a development which we very much welcome.

Throughout GB it is crucially important to recognise that enforcement action taken or recommended by HSE is distinct and separate from civil claims for compensation. It is perfectly possible that civil claims may be pursued in circumstances and cases where no enforcement action is taken, and it is certainly not the intent of our enforcement policy to take action in order to assist/support the progress of civil claims.

HSE’s policy is based on a strong belief in firm but fair enforcement of health and safety law. In our view, it is important to assess fairness in terms of:                                           

We also endeavour to ensure consistency of approach – but not uniformity given the importance of the exercising of judgment as I have already stated. Given the complexity of our regulatory arrangements involving not just HSE inspectors but local authority regulators up and down the country this is no simple task but we do undertake reviews of decision making to check for consistency. We have recently published a new enforcement standard for local authorities and HSE’s Field Operations Directorate to secure a consistent approach to enforcement. We expect both HSE and FOD inspectors to be fully compliant by April 2011.

Transparency of approach is also important – so that dutyholders understand what we expect of them and also to ensure that employees, their representatives and victims or their families are informed. As I have already said this is a difficult and sensitive area where we try hard to get the balance right. We have recently acknowledged that our approach to putting information in the public domain about fatalities needs to change. The successful challenge made by CCA to the Information Commissioner has caused us to revisit our policy in this area and from now on we will routinely release a provisional list of fatalities – including the names of the deceased.

Our final principle on enforcement is one of public accountability – which involves clearly laid out policies and standards and an easily accessible process of dealing with queries and complaints.

It is a matter of much debate among stakeholders as to whether or not HSE brings “enough” prosecutions. There are some who believe there would be merit in setting targets for numbers of prosecutions – I am firmly of the view that this would run the risk of compromising the very sound principles based approach which I have described, and would not fit with our focus on outcomes.

It is right and proper that HSE inspectors judge which incidents to investigate and when to bring prosecutions provided that they do that against very clear guidelines and that we maintain appropriate reviews for consistency and fairness.

The fact that we consistently maintain a success rate of ~80% in England and Wales where we bring our own prosecutions is a very important benchmark – if that number were as high as 100% it might perhaps indicate an overly cautious approach in only bringing “cast-iron” cases to court, but equally a significantly lower success rate might point to an over propensity for enforcement. Our prosecution rate in 2007/8 was 1028 offences which is broadly similar to the previous year but we also served close to 8,000 notices which are also an important and effective element of our enforcement process.

Looking to the future, we will launch the new strategy for Health and Safety in Great Britain in the 21st century on 3rd December. It will be launched simultaneously at events in London, Edinburgh and Cardiff. That date will mark the start of a 3 month consultation process but one which is different from previous HSE consultations.

Our work to date in developing the strategy has been different too - because what we have produced is a strategy which describes the whole health and safety system as well as the regulator’s role within it. The strategy has been a true partnership process involving Local Authority co-regulators as well as HSE.

The strategy will not be revolutionary but it will set out to optimise the performance of the overall health and safety system. It will clarify the roles of the regulated, the regulator, the workforce and the many others who are part of the system.

We will emphasise the importance of leadership - from the top of every organisation starting with the Boards and individual directors. We will place leadership at the heart of what we see as the overriding strategic aim - the prevention of death, injury and ill health to those at work and those affected by work activity.

There will be a strong focus on a proportionate approach - by dutyholders in being pragmatic and sensible in their approach to risk management, by health and safety professionals in giving competent advice which takes account of the need to encourage a common sense approach. It is neither desirable nor practical for any of us to be in the business of risk elimination.

We will make it clear that worker involvement and consultation is important in every organisation - where trades unions are present and where they are not and in all organisations irrespective of their size or dispersal of work locations.

Every organisation is different and the risk profile will vary from one organisation to another. To reduce the toll of work-related injury and ill health we need to improve our ability to focus on priorities - whether by industry, by sector, by region of GB, or by individual issue. We need every organisation to take ownership of the process to identify its own risk profile. That prioritising process must also recognise and distinguish health, and safety and the different approaches which will be required to address the precursors of both.

It is clear that the risks, and hence the priorities, for dutyholders, employees and regulators will differ considerably between for example construction on the one hand and a large NHS Trust on the other. It is essential that our new approach addresses the key priorities sector by sector, business by business and region by region.

We will also continue to put effort into those sectors which continue to carry a high risk and higher actual occurrence of serious injuries and fatalities. Because they carry well known risks cannot be an excuse for continued performance which is out of line with what other sectors manage to achieve. We may well need to pilot new ways of addressing these persistent areas of concern.

Small businesses will continue to be a major component of the British economy. We will work with the SME community to help them understand how to comply with health and safety law in a way which is proportionate to the risks of their business and which gives those businesses greater confidence to take decisions for themselves within a goal setting framework.

HSE and its partners in Local Authorities will focus on key activities to ensure that dutyholders manage their workplaces to assure health and safety of the workforce and the public where they are affected by work. Those activities will include

Our enforcement policy will remain unchanged.

It is quite clear to me that HSE cannot do all of this alone - we need the commitment and support of all stakeholders - and I mean commitment to join with us in delivery not just endorsement of the principles outlined in the strategy.

In January we will hold a series of workshops - seven in all - as part of the consultation process. The workshops will take place up and down the country and will provide an opportunity to discuss how we can all work together to bring about these all important next steps in further improving our health and safety performance in Great Britain.

We may never agree totally on the best means to achieve our goals, but I do hope that we can at least agree on a common purpose and on a commitment to work constructively to achieve that purpose.

Updated 2009-01-06