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Permissioning: open and accountable?

Issue date

draft HSC statement on permissioning regimes

TUC response to the draft Health and Safety Commission policy statement on permissioning regimes

The TUC represents working people in Great Britain, and draws in particular on the views of its 69 affiliated trade unions which have 6.7 million members. This TUC response has been drawn up on the basis of comments from unions and from two groups of safety reps on TUC courses who examined the draft policy statement as part of their course-work.

The TUC welcomes the HSC’s decision to publish its policy statement on permissioning regimes, not least because of the confusion that exists at the highest levels of Government about what such regimes deliver.

We have tested the text against the understanding of safety reps, and although it could still be expressed more simply, they were able to use it and respond meaningfully. They felt that more examples would illuminate the language, and references to other publications (such as Reducing Risks, Protecting People) should either be kept to a minimum or explained in an annex. Safety reps engaged in implementing permissioning regimes will need further training (sometimes jointly with line managers).

Our main concerns, however, are with permissioning itself. The TUC believes that:

  • the system of permissioning needs to be made more open if it is to secure the confidence and gain understanding from the workforce and the general public;

  • the processes by which, and the criteria against which, decisions might be made to withhold permission should be spelt out;

  • the responsibility and accountability for implementing the safety cases on which permissioning is based should be spelt out more clearly; and

  • permissioning regimes are under-funded compared with licensing regimes, so they are less likely to reflect what is actually happening at the workplace, because they cannot be supported by sufficient staff, and can be ‘paper’ exercises.

One area where the draft needs considerable improvement is in providing a statement of exactly and precisely what permissioning regimes are. There is a definition in the annex, and at the very least this needs to be brought forward to the start of the document. But it also needs to be expanded to cover what the point of such regimes are, currently covered in principle two.

The TUC does not believe that permissioning regimes should be considered to be a ‘last resort’ - they should be used whenever appropriate, like all other regulatory measures. There are some industries, such as nuclear and chemicals, which require a ‘permit to operate’ by society, and it is from this that the permissioning regime flows, rather than from experience that nothing else works.

Openness and transparency

The system of permissioning needs to be made more open if it is to secure the confidence and gain understanding from the workforce and the general public. At the moment, unions are concerned that it can be used to screen cost-cuting measures by employers. The use of commercial confidentiality to prevent the HSE from releasing certain documents voluntarily submitted by employers means that it is sometimes not even possible for the unions representing staff employed by the company to see those documents, let alone the general public. The requirements of post-9/11 security in the chemical industry has led to the effective suspension of many of the areas of openness in the COMAH regime, for example.

Even in those sectors where the trade union movement has found the safety case regime very helpful, such as in railways, the complexity of the regime requires a very high level of training for both the line managers involved in its implementation and the safety reps who are consulted. It is very difficult to see how, without extra training, either group could adequately deal with the detail and complexity.

Refusing to give permission

The processes by which, and the criteria against which, decisions might be made by HSE to withhold permission should be spelt out.

The TUC believes that more clarity would be useful both for duty holders and those whose safety is being assured by the safety cases. Principle 10 suggests that this is more than a theoretical possibility, but no explanation is given about how permission might be refused, or on what basis. We would like to see a document like the Enforcement Policy Statement against which HSE decisions could be judged, and which would create greater transparency in the decision making process.

Our experience of licensing regimes, where there are clear criteria that employers need to meet before they are granted the all-important licence, is that they are therefore more effective at achieving observable improvements in performance.

Responsibility and accountability

The responsibility and accountability for implementing the safety cases on which permissioning is based should be spelt out more clearly in the safety case itself.

Reality … and funding

Permissioning regimes are under-funded compared with licensing regimes, so they are less likely to reflect what is actually happening at the workplace, because they cannot be supported by sufficient staff, and can be ‘paper’ exercises. Licensing works better because there are enough people to monitor and enforce the licenses.

We are concerned that without adequate benchmarking standards, inspectors are unable effectively to challenge the safety case they are presented with - especially where the company is proposing to change the safety case.

We recognise the problems of the current system of ‘actuals’ charging, and, like most, we would prefer it to be replaced by a levy system when Parliamentary time allows.

In general, union safety reps who looked specifically at the document felt that more examples would usefully illustrate the policy statement, and that a lot of prior knowledge was needed to understand the detail of the processes involved, without any summary of key documents like Reducing Risks, Protecting People or even the discussion document on which the draft policy statement was based. On safety rep said: 'it required several readings before I thought I grasped the concept that was being described. Even then, I may have got it wrong!'

  • Introduction and regulatory context for permissioning

1. Does this adequately explain the background to the draft policy statement, what it covers and what it is intended to achieve?

2. What are the greatest barriers to better understanding of the HSC/E approach to permissioning regimes?

Unions and safety reps felt that this section needed to describe what exactly a permissioning regime is, and there was a general feeling that it would be useful to explain further how permissioning and other regimes fit together - for example, if an existing regime is found to be failing, would permissioning replace it or supplement it?

There was a general concern from safety reps that the terms ‘process regulations’ and ‘setting administrative requirements for the management of risks’ needed to be explained, and the references to other publications were not helpful (for example, why refer to Appendix 2 of Reducing Risks, Protecting People without reproducing or summarising it?). It was felt that this section presumed prior knowledge and didn’t specify timetables for failing to comply, or define the duty holders. Unions also felt strongly that the document was too full of jargon, and that the language used was one of the main barriers to understanding the HSC/E approach.

  • Principle 1 - Why will a permissioning regime be introduced?

3. Does this clearly and fully explain the circumstances in which a permissioning regime would be introduced and the criteria and factors the HSC will take into account? If not what should be added?

Although the text was generally considered by safety reps to be clear, most suggested that an example would be useful. Societal concerns were not explained (it was suggested that para 25 of Reducing Risks, Protecting People could usefully be added or annexed) and again, it was suggested that some clarity was needed about why a permissioning regime might be introduced where none had existed before.

Unions also suggested that to meet the more positive approach to permissioning expressed above, the second sentence of the first paragraph of this section should be amended to read: 'we will propose such a regime where the normal forms of regulations are not considered appropriate to deal with the risks posed and where introduction of such a regime is justified by the safety benefits it will bring.' Unions also felt that, while HSC/E is clearly not the appropriate regulatory body, some overlap with the need for environmental safety also needs to be addressed in this section.

  • Principle 2 - What are permissioning regimes intended to achieve?

4. Does this adequately describe the objectives of establishing permissioning regimes? If not, what further details would you wish to see?

Most safety reps felt that the principle was fairly or very clear, but again would benefit from an example. It should be clearer about who or what was being targeted by the permissioning regime, and should cover the hierarchy of control.

Unions felt that the objectives should include an overall improvement in safety standards.

  • Principle 3 - How will permissioning regimes achieve their ends?

5. Does this fully explain how the HSC would design a permissioning regime to work to achieve the objectives set out under principle 2? If not what more information should be included? Do you agree with the emphasis on safety cases or reports?

The overwhelming view of safety reps was that HSE should concentrate far more on the situation in the workplace rather than on paper (in terms of emphasising safety cases and reports) and in particular needed to look at the practices in place before permissioning began, to identify how far the permissioning regime was having an impact.

Partly to assist such scrutiny, safety reps felt that the safety documentation needed to be clear and subject to public scrutiny, as well as involving safety reps (though they also felt HSC/E needed to be clearer for employers about what should go in a safety case). One safety rep said: 'the safety documents will need to be clear and to be written so that they can be understood by people who aren’t necessarily experts in the activity to which they relate, so that their effectiveness can be clearly seen.'

Safety reps also stressed the dependence of permissioning regimes on the input of inspectors (which is why there was praise for licensing systems). One safety rep said: 'The whole proposal stands or falls on the working relationship between the duty holder and the safety regulator.' There was a concern that the safety case 'looks like a glorified risk assessment, with all the onus on the designated responsible person.'

Safety reps also asked who was responsible for keeping the safety documentation up to date, and emphasised the need to examine the impact on safety of software system changes. Unions, too, felt that the draft glossed over who would be responsible for making sure that safety plans were put into effect.

  • Principle 4 - Do permissioning regimes guarantee safety?

6. Does this indicate that the limitations on what a permissioning regime can be expected to achieve are realistic and acceptable?

The points made were felt by most safety reps to be very clear, but one safety rep suggested that the limitations were not and would never be clear to the general public. Another complained that 'permissioning regimes are passing the responsibility for ensuring safety onto the duty holders' - feeling that the assurance of safety should be up to the regulator - a position shared by unions. Again, safety reps warned of taking paper assurances too seriously.

It has been suggested that the reference to demonstrating things ‘on paper’ could be clarified - we assume it means ‘in theory’ as opposed to ‘in practice’, rather than implying a particular medium.

  • Principle 5 - What type of permissioning regime will we recommend?

7. Do you agree with the benefits of having regimes which are consistent with goal setting; and with the description of circumstances where some prescription may be appropriate?

Safety reps generally felt that, while goal setting was undoubtedly crucial, there should be a balance between goal setting and prescriptive legislation, with the one complementing the other. Prescriptive legislation could set minimum standards of behaviour, and goal setting could secure bench marking against good practice. It was stressed that any goals set must be achievable. One rep said: 'Goal setting is fine as long as it avoids the targets-and-objectives-syndrome whereby a goal that is not achieved is associated with failure. Emphasis will inevitably be put on those goals which are easily attainable - goals which are difficult to achieve will be subject to criticism.'

Unions expressed concern that HSE seems to want to withdraw from as many permissioning regimes as possible.

  • Principle 6 - How detailed will permissioning regimes be?

8. Do you think this strikes the right balance between consistency and ensuring each regime is fit for purpose? If not, what should be added?

Almost universally, safety reps and unions thought the balance was right, although one added 'if it happens in reality'.

  • Principle 7 - What are the effects of permissioning regimes on the regulator?

9. Does this adequately describe the position of the regulator in permissioning regimes? If not, what should be added?

Most safety reps and unions felt that the position of the regulator was well described, although a few noted that this was only true if the duty holder reported to the regulator what was happening. It was felt that more specificity about whom the regulator should liaise with (including safety reps) would be useful to make sure that obligations were being met in practice. Another suggested that there was not enough emphasis on the regulator’s powers to ensure compliance.

  • Principle 8 - How open and inclusive will permissioning regimes be?

10. Does this strike the right balance between transparency and ensuring the regime is effective in achieving its objectives? If not, what should be added?

Unions felt that workers are often denied access to information they need and have a right to because of suggestions of commercial confidentiality. Whether this is because of abuse of the system, or a basic flaw in commercial confidentiality is unknown.

There was some support for the balance among safety reps, but others stressed the need for consultation with safety reps and felt that the draft policy statement was not sufficiently positive about openness and the need for sufficient time for consultations. There were particular concerns about what constitutes relevant documents - one asked who decides what is relevant and another urged that the regulator should receive all the documentation and decide.

Unions suggested that emergency service providers should be provided with more information, and that conversely, safety reps and workers should be informed about emergency plans.

  • Principle 9 - How will we know if permissioning regimes are effective?

11. Is this an appropriate approach to evaluating the effectiveness of regimes in achieving their objectives? If not, what else should be done?

Safety reps expressed concern at cost being seen as the main element of effectiveness, and wanted public reports of permissioning regimes so that the public could judge effectiveness. Unions expressed concern that as long as safety reps did not have access to all the information, they could not make a judgment about how effective the regime was. There was concern that the language was not precise enough, and the view was expressed that effectiveness needed to be tested at workplace level rather than on paper. Other concerns were that the proposal looked too much like self-policing.

  • Principle 10 - What can you do if you are unhappy with the regulator’s refusal to give permission?

12. Is this approach clear and appropriate? If not, what should be added?

Safety reps were generally happy with this section, and agreed that there should be a right of appeal. However, some asked who the ‘independent’ person would be and who would pay for them.

  • Summary of the principles

13. Do you think the principles as a whole are clear and comprehensive? Do you agree that they should be pitched at the strategic level? Can you suggest anything else that should be included?

A majority of safety reps felt that the principles were clear and comprehensive, but almost as many stressed the need to be operational as well as strategic.

  • How will we use this policy statement?

14. Does this make clear how the HSC would use the policy statement, once adopted? In particular, is it clear that the HSC would only seek to bring existing regimes into line with the principles where it is sensible to do so? Is there any more the HSC could do?

Safety reps were content with this explanation, although one asked who the ‘other stakeholders’ referred to in the second paragraph were.

  • Annex A - Definitions

15. Are these definitions clear? Do any other terms used in the statement need to be defined?

The definitions in the annex were considered by most safety reps to be clear, good use of plain English. However, it was reiterated that the constant reference to other publications was not helpful, and that further definitions were needed for ‘process regulations’ , ‘key relevant documentation’, ‘inspection report’, and ‘the administrative requirements for the management of risk’.

  • Any other comments

16. Should the statement cover anything else? Have you any other comments on the statement or the issues it raises?

Safety reps wanted a summary of some of the other documents referred to (it was said that the document assumed prior knowledge), and more clarity on when a permissioning regime would be introduced (and how it would relate to other regulatory systems). A few felt that it was still not written clearly enough - one said: 'it should be written in simpler, more easily understood language. This may prove difficult to do for the whole of the policy statement. However, it should be possible to express the intention of the policy in plain English.'

Of the seventeen safety reps who looked at the consultation paper on the draft policy statement, one said it covered the issues very well, nine said well, four said not well and three did not answer. Two of the respondents asked for their comments to be kept confidential and their comments are broadly reflected above - none of the quotes comes from them.

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