Administration of Justice (Scotland) Act 1972 (Scotland Only)

As part of our regulatory activities, HSE collects and processes information which relate to health and safety incidents in the workplace – typically where those incidents have led to fatalities, serious injury, or ill health.  Our primary focus is to investigate suspected criminal breaches of health and safety legislation and take appropriate action.

HSE understands the information we hold may also be important in supporting civil action taken by those affected by workplace incidents.  The Administration of Justice (Scotland) Act 1972 makes provision for those considering or involved in such actions to make an application to the court to order disclosure by HSE of relevant information.  This is usually undertaken before separate court proceedings are raised relating to the incident itself.

An order granted under the 1972 Act by a Scottish Court provides a legal gateway for HSE to disclose information that might otherwise need to be restricted or withheld in full if considered under alternative disclosure gateways such as FOIA.  HSE will always look to respond and comply with a valid order issued by the court.

Specification of Documents (Scotland Only)

Separate to orders under the 1972 Act, there is Scottish common law procedure known as Specification of Documents. This is undertaken during the course of litigation. To obtain access to documents held by HSE, an applicant must first prepare a Specification of Documents which articulates the specific information being sought. The applicant must submit a motion to the court to recover the documents detailed in the Specification. At the same time, the applicant must intimate details of the motion to the Office of the Advocate General for Scotland (“OAG”) who act for the UK Government in respect of reserved matters in Scotland.

HSE suggest using the Draft Specification of Documents Template as this makes reference to the main information artefacts that are typically generated as part of an HSE investigation.  Failure to use the terms of the draft specification may lead to objections and delay to your application.

On receipt of a draft Motion and Specification, HSE will:

• Locate and retrieve the information that is deemed within the scope of the Specification
• Compile a document schedule to confirm what records were requested, and what records HSE holds

Once your Specification has been granted by the court, you should then send a scanned copy of the Court Order and Specification of Documents to [email protected] and also [email protected].  Alternatively, you can send approved copy of the Court Order and Specification of Documents to the following address ensuring you use recorded delivery (although this may cause delays in processing):

On receipt of a Court Order, HSE will disclose the document schedule and all records deemed disclosable in a confidential envelope to the appropriate Court. 

The applicant will, thereafter, require to enrol a motion with the Court to ask that the confidential envelope is opened up and the documents disclosed to them.

Timescales

Specification of Documents will be handled in accordance with the timescales defined by the court. HSE would expect Specifications to provide sufficient time is made available to ensure compliance and to avoid an application for an extension of time.  Typically, HSE would suggest a motion is intimated at least 28 days prior to the Court session to ensure compliance with the Specification.

When we might object to disclosure

HSE may object to an order and make representations to the court if we consider disclosure would prejudice HSE’s ability to perform our statutory function(s).  Examples include, but are not restricted to:

• Disclosure would prejudice HSE’s ability to deliver appropriate enforcement action
• Information relating to confidential sources
• Material held by HSE that is owned by another party which may be commercially sensitive
• HSE’s investigation analysis
• Both internal communications and communications with other enforcing authorities concerning potential prosecution strategies and plans
• Information that is subject to Legal Professional Privilege (LPP)
• Documents contrary to the public interest

Where HSE objects to disclosure, whether disclosure is provided will be a matter for the court after considering representations.