LA enforcement in premises in which they may have an interest

Health and Safety Executive/Local Authorities Enforcement Liaison Committee (HELA)

This circular gives advice to local authority enforcement officers

Issue

A potential conflict of interest may occur where a LA is the relevant enforcing authority in relation to premises in which it also has an ownership or management interest.  A conflict of interest can either be an actual or a perceived conflict of interest (see paragraphs 17 and 18 for further guidance).  If a conflict or perceived conflict of interest is not dealt with appropriately it can cause unnecessary difficulties in the regulatory activities that may follow a work-related death or other serious incident. 

Purpose

This guidance has been developed to address concerns arising from the closeness of their regulator and dutyholder roles in respect of some premises and work activities. For example, where LAs are called upon to exercise their responsibilities as a health and safety regulator in leisure centres wholly owned, but not managed by themselves. Further examples can be found in Appendix 1.

This circular sets out the principles and examples of good practice to enable LA health and safety regulators to address, proactively, any potential conflicts of interest in an open and transparent way so that:

• health and safety enforcement is not compromised;
• preventable legal challenge is avoided, and
• regulator credibility is not undermined.

It does not replace existing guidance relating to the Health and Safety (Enforcing Authority) Regulations 1998 ^fn2, or that interpreting the scope of Section 3 of the Health and Safety at Work etc. Act 1974 ^fn2. 

It does not provide guidance on procurement.  For links to more detailed guidance on procurement go to the HSE website ^fn3.

To prevent unnecessary confusion and distortion of regulatory responsibility all enforcing authorities should ensure that prior to any deliberation regarding a conflict of interest full consideration has first been given to the Health and Safety (Enforcing Authority) Regulations 1998. It is not the intention of this guidance that HSE will regularly take on enforcement responsibility where the LA would be the most appropriate enforcing authority. HSE should only be the enforcing authority for premises originally allocated to LAs by the Health and Safety (Enforcing Authority) Regulations 1998 in exceptional circumstances, and transfer of enforcement responsibility to HSE under the Regulations should be a last resort.  

While the general presumption in this guidance is that LAs should continue to enforce in premises allocated to them by the Health and Safety (Enforcing Authority) Regulations 1998, there will be some occasions when there is a genuine conflict of interest. These should be determined on a case by case basis having regard to the nature of the LA's involvement, the dutyholders responsible for the risk and the person most likely to be primarily in breach should an offence occur.

In the first instance LAs should ensure arrangements are in place so they can continue to be the enforcing authority without any conflict, actual or perceived. If there are no actions a LA can take to prevent a conflict of interest they should contact the HSE staff who have the responsibility for enforcement liaison.

Openness and transparency should remain key considerations, LAs may find this more easily managed if they maintain an appropriate separation of their roles of health and safety enforcement and management of their corporate health and safety.

Section 18 of the Health and Safety at Work etc Act 1974 (HSWA)

Making arrangements for potential conflicts of interest is a component part of the LA's enforcement responsibilities and is therefore part of the LA's requirement to make adequate arrangements for enforcement (Section 18 of HSWA).

Enforcement Policy

Enforcement policies should include a clear statement of the LA's approach to premises in which it may have an interest, such that it will:

• carry out its enforcement policy and practice in exactly the same way that it does for  all other premises and dutyholders
• have arrangements in place to identify and resolve potential conflicts of interest
• inform HSE if they identify a split in enforcement responsibility eg in an LA owned and managed shopping precinct, LA enforces within retail outlets but HSE enforces those areas under direct LA control
  

Enforcement Responsibility

In most situations enforcement responsibility will follow the enforcement allocations as laid out in the Health and Safety (Enforcing Authority) Regulations 1998. Where the LA has a management or ownership interest in premises for which it is also the enforcing authority, it should consider whether that interest is so great that it should no longer act in a regulatory capacity. 

There may be situations where although a LA has passed day to day management including health and safety duties to contractors, it retains some residual health and safety responsibilities in relation to the ownership.  The fact that the LA retains such responsibilities does not mean that a transfer to HSE is automatically necessary and the LA may act as both owner of a certain premises and the enforcing authority.  Appendix 2 and Appendix 4 of this guidance detail how conflict in such situations can be resolved or avoided.

HSE's Enforcement Policy Statement and its commitment to targeting may assist enforcing authorities making judgments about the extent of the LA's responsibilities. LAs should ensure that:

• regulatory attention is focused on the dutyholders whose operations pose the greatest risk;
• enforcement action is directed against the dutyholders responsible for a breach, and
• enforcement action can be taken against all the dutyholders with responsibilities if it is appropriate and supported by the LA's enforcement policy.

It may be necessary to review the detail of the LA's contract with the service provider and all relevant risk assessments/method statements before making a judgment on the extent of the LA's responsibilities.

The question of who is responsible for any breach is therefore a crucial one. The answer gives some clue as to the extent and nature of the LA's responsibility.

It is not possible to write guidance that details every possible permutation of ownership and management arrangement.  To support consistent decision making, common issues, the means to avoid and resolve conflicts of interest and a decision making flowchart are contained in Appendix 1, Appendix 2 and Appendix 4.

The perception of a conflict of interest

In addition to considering actual conflict, courts have considered the concept of apparent bias; the question to be asked is whether a fair-minded and informed observer, appraised of all the relevant facts, would conclude that there was a real possibility that a LA was biased. The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally. The courts have ruled ^fn4 that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.

It is not unreasonable to assume that the fair-minded observer would be aware of the division of responsibilities between a LA and the contractor, and also of any safeguards put in place to ensure there was no conflict of interest, for example clear internal boundaries were established, an officer from another LA would carry out the investigation etc. Such knowledge would be capable of satisfying the fair-minded observer that the LA was not biased in carrying out its regulatory functions.

Principles of good practice

Where the LA has a role to play as dutyholder in relation to an activity or premises for which it is also the enforcing authority, difficulties may arise where it is effectively required to take enforcement action against itself.  Similar situations can arise in other regulatory areas eg food hygiene, building control, trading standards. LAs should consider if the ways in which they deal with conflicts of interest in those areas can be applied. Without careful consideration, it is not always evident whether a conflict of interest exists. It is the view of HSE that it would be counter productive and contrary to the Health and Safety (Enforcing Authority) Regulations 1998 if there was a transfer of enforcement responsibility to HSE for all sites with any LA involvement.

LAs should adopt the following principles in order to ensure a consistent approach to circumstances of enforcement responsibility that vary widely in the detail of ownership and management arrangements:

LAs should be proactive in identifying and addressing potential conflicts of interest as part of their enforcement policy and general arrangements.

LAs should have plans and contingencies in place for dealing with those exceptional circumstances where a conflict of interest has come to light after an incident has occurred.

LAs should identify whether any potential conflicts of interest are introduced or removed when governance arrangements change.

LAs should not presume HSE will act as the default regulator where there is a potential conflict of interest. Other means of addressing the conflict should be explored first, with transfer of enforcement responsibility to HSE taking place only in exceptional circumstances and as a last resort.

The above principles should be delivered in a way that will aid effective enforcement. If following an incident a conflict of interest is identified, consideration for the need of the transfer of enforcement responsibility should be undertaken at the earliest opportunity. There may be situations where such potential conflicts are not apparent until there has been an investigation of the underlying causes of an incident.

Being able to demonstrate the use of 'good practice' can help prevent situations, or the perception that there may be a situation, in which a potential for a conflict of interest could arise (see Appendix 2).

'Good practice' includes using the HSE guidance for clients when awarding and managing contracts. Following the principles in the guidance should help identify where there may be a conflict of interest in the future and could possibly be used to demonstrate the independence or otherwise of named officers or departments in the event of legal challenge.

Action following an incident

LAs following this guidance should be resolving conflicts of interest before incidents occur. However, there may still be some investigations where the LA may identify a previously undiscovered conflict of interest which it cannot resolve itself or there is difficultly in determining if there is a conflict of interest. Resolving these issues at the earliest opportunity will reduce the impact upon the enforcing authority's ability to undertake an effective investigation and may reduce the likelihood of a legal challenge.

If the LA cannot resolve the issue itself it should be discussed with the relevant HSE enforcement liaison contact. Any decisions made in such a discussion should be recorded and a copy kept by both the LA and HSE. The record sheet in Appendix 3 can be used for that purpose. 

The LA/HSE discussion may result in the need for a Regulation 5 transfer of Enforcement Authority or a Regulation 6 assignment as detailed in the Health and Safety (Enforcing Authority) Regulations 1998.  

In common with the transfer of enforcement responsibility prior to an incident, the transfer of enforcement responsibility post incident should also only be necessary in exceptional circumstances.

If a transfer does take place, HSE will be able to carry out its own investigation and take forward any appropriate enforcement even though the incident occurred before enforcement responsibility was transferred to HSE.  Any evidence which was collected by the LA may be of value to HSE and should be disclosed under s.28 HSWA. HSE should then follow any further lines of enquiry it deemed appropriate. If the HSE investigator identified gaps in the evidence collected by the LA or aspects of the case needed clarifying or expanding, they should collect additional evidence as appropriate. 

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Appendix 1

Situations in which a conflict of interest can arise

Below is a list of the most common conflicts of interest that can arise, this list is not exhaustive.

Client/contractor role - This split of enforcement in respect of individual premises brings with it special considerations. First, the nature of the LA's involvement could vary from premises to premises depending on the exact nature of the client/contractor role and the detailed wording of the contract which secures it. The LA may apply different conditions to different premises and management situations within its undertaking. Second, it is possible that both the LA (as owner and client) and the contractor, (as operator) could be jointly failing in their health and safety responsibilities. This could put the LA in the position of both regulator and regulated (and potentially, prosecutor and prosecuted) in respect of the same premises. Third, and notwithstanding the above, the LA might feel that whatever it did in such circumstances, its position as regulator and dutyholder could appear to be in conflict and its credibility, therefore, could be undermined.

Trustees and management boards - In organisations in which LAs may be represented or act as trustees, a reasonable judgment can be made about who is the primary dutyholder and who, in the event of enforcement action, would be regarded as primarily in breach. The existence of LA representatives on management boards and trusts is not in itself a sufficient reason for transferring responsibility to HSE. In any event, LA members would be expected to follow the normal rules of their engagement and declare all relevant interests as appropriate. If the trust was merely an extension of the LA as a convenient vehicle for transacting its business, enforcement should be carried out by HSE. A transfer is likely to be necessary in these circumstances.

Licenses or the granting of permissions - Some LAs have also expressed concern about premises for which they operate other controls such as the issuing of licenses or the granting of permissions under planning and building regulation regimes. The issue of a license or the granting of approvals does not transfer any health and safety dutyholder responsibilities to the LA. It is perfectly acceptable for premises to which these other regulatory activities apply to remain under LA health and safety enforcement.

LA/HSE Split enforcement responsibility, LA has ownership but is not the operator – In these situations the LA may have both health and safety dutyholder and enforcement responsibilities. HSE will be the enforcing authority for the duties held by the LA and the LA will be the enforcing authority for the duties held by the contractor, agent or other involved parties. It is essential that LAs have an open and transparent policy on the involvement of HSE in these premises, and an effective process for communication and liaison. 

For example in Sports facilities and shopping malls - The Health and Safety (Enforcing Authority) Regulations 1998 had the effect of bringing LA owned indoor sports facilities into line with all other LA owned but not managed facilities such as shopping malls. In these premises the LA is the 'enforcing authority', with HSE enforcing any residual health and safety responsibilities falling to the LA as owners of the premises, suppliers of equipment, or as clients of any contractors.

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Appendix 2

Avoiding and resolving potential conflicts of interest
Listed below are various ways in which a LA can protect against there being an actual or perceived conflict of interest.

• Policy - The LA enforcement policy should detail its commitment to 'proportionality, targeting, consistency, transparency and accountability' or a policy/procedure regarding the handling of potential conflicts of interest.
• Organisational Structure - The LA should consider if it is appropriate for it to be the enforcing authority at premises in which it has a significant involvement or gains significant benefit (prestige or financial) from either its ownership or funding of the undertaking.
• Procedural Systems - The LA should have suitable management systems in place to ensure that the H&S regulatory team can demonstrate that they act as an independent enforcing authority (inspection, investigation or enforcement). Most LA procurement and legal departments will have existing policies and procedures to manage conflicts of interest for elected members and council officers. LAs should consider if their own existing corporate procedures, and their supporting systems, should be used to manage H&S regulatory services, eg recording the involvement and interests of named legal staff in drafting contracts, or of named health and safety professionals if they have been involved in drafting/negotiating service agreements.
• Managerial Structure - The LA should have suitable systems in place to ensure that LA officers or elected individuals are not part of the undertaking's management team ie making decisions on day-to-day working practice or strategic spending decisions. The establishment of clear internal boundaries between the LA's various roles will ensure that individual officers are not asked to act in a capacity which draws them into a conflict of interest. This may be achieved in a number of ways eg at regulatory officer level, if any residual enforcement and dutyholder responsibilities fall to the same department, it is important that they do not fall to the same officer. In the case of accidents and investigations, the LA should ensure that in all situations any investigation retains its independence and objectivity.
• Managerial culture - Members of the LA H&S regulatory teams are confident that LA elected members or senior managers will not attempt to influence them to act in a manner that is not in accordance with their enforcement policy.
• Personal independence - The officer(s) that are undertaking or managing the investigation were not involved in drafting contracts with or giving LA corporate H&S advice to the management company. If, because of past involvement, the LA lacked an independent investigator this could be resolved by using an officer from another LA ie the LA may consider the appointment of an officer from another LA to carry out the investigation, using Section 101 of the Local Government Act 1972 or Section 56 of the Local Government (Scotland) Act 1973. Alternatively, the LA may consider contracting the investigation to an independent or consultant EHO or making use of flexible warrant provision.
• Independence of legal advice/ separate legal provision - The same individuals in the LA legal team that drafted the existing contract that the dutyholder operates under should not be involved in making the determination on potential enforcement action/prosecution. The LA may achieve this by maintaining separation between those providing legal advice in different remits. If the LA cannot achieve this clear division of responsibility in its internal legal department it should consider contracting the work out to a private solicitor or using the legal department of another LA.
• Past behaviour - The LA has a history of taking justified enforcement action when past significant failings have been identified. 
• Perception of a conflict of interest – The LA is proactive, open and transparent in communicating how it deals with conflicts of interest with all interested parties such that one would expect that a reasonable bystander, in full possession of the facts, would not perceive a conflict of interest (see paragraphs 17 and 18). Interested parties may include those under investigation, those directly affected/family members and the wider community.
• LA/HSE Split enforcement responsibility (dual investigations) – If there is the need to investigate the clear and separate duty holder responsibilities of an LA appointed management contractor and the residual duties that the LA retains, a two stage approach can be adopted.  For example the LA EHOs investigate the circumstances of an accident and the role of the contractor as the primary dutyholder and HSE investigate the role of the LA in relation to any residual duties.

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List of Appendices

• Appendix 1
• Appendix 2
• Appendix 3
• Appendix 4

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Footnotes

1. Health and Safety Executive/Local Authorities Enforcement Liaison Committee (HELA)
2. Health and Safety at Work etc Act 1974 - Section 3: Enforcement - Introduction. Back to reference to footnote 2
3. Procuring waste management services. Back to reference to footnote 3
4. Kirby J in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Back to reference to footnote 4