TUC response to proposed revisions to the HSE enforcement policy.

25 September 2000

TUC response to the proposed revisions to the HSC enforcement policy

This letter constitutes the response of the TUC to the revised HSC enforcement policy. The TUC represents working people in Great Britain and this response has been drawn up in consultation with the TUC’s affiliated unions, which have nearly 7 million members.

The TUC welcomes the draft enforcement policy statement which the HSC has circulated for comment. It is a great improvement on the current version, although there are still areas where the TUC would want to see changes. Although most of our comments are textual in nature, we have some general comments to make.

General comments

Firstly, we believe that the Government needs to increase substantially the resources available for the HSC and local authorities so that many more Inspectors can be brought to bear on the implementation of the HSC enforcement policy. Without a great deal more enforcement officers, the policy will be of relatively academic merit, and only a tiny proportion of incidents and illnesses will be investigated, let alone acted upon. The TUC believes that the Commission needs to make it clear to the Government that without more inspectors and therefore more resources, the improvements in the current draft will be meaningless, and enforcement will carry on much as before.

Secondly, we note that, although there are avenues for appeal against inspectors’ decisions to serve notices, prosecute and so on, there is no identified avenue through which to lodge complaints about inspectors’ failure to take enforcement action (including a failure to investigate). Without an explicit method for doing so, the only avenue would appear to be judicial review. In some cases, this will prove off-putting and will deter valid complaints - alternatively, in most cases, applying for judicial review of a decision not to investigate could involve disproportionate effort, time and money. We believe that the Commission should reconsider how to deal with such complaints.

Thirdly, we believe that the concept of transparency in the section on the principles of enforcement relates only to the needs of those having enforcement action taken against them. The TUC believes that transparency in the process of enforcement should include the victim (or in the most tragic cases, the victim’s family) - but we accept that the current section on transparency is not the right place to put this. The Commission needs to revisit the issue of how inspectors relate to victims and their families, and should ensure that the decisions taken on their cases are fully and transparently explained.

Fourthly, although these points are broadly related to some in the detailed comments below, the TUC believes that the current draft of the enforcement policy statement gives an inadequate role to safety reps. The TUC believes that safety reps should have the power to serve provisional notices (both improvement and prohibition) and that they would need guidance not dissimilar to this statement in the exercising of such powers.

Specific points

Throughout the document, the TUC would welcome some clarification of the use of the term "accident". We would prefer (the first bullet in para 1 is a good example) for the word to be replaced by the words "injuries or dangerous occurrences" or "incidents". We believe that people hold to wildly different definitions of what is implied by the term "accident" and therefore believe it would be sensible to avoid its use altogether.

Principles of enforcement

Under "Proportionality", the TUC would want it understood that sometimes, the HSE should take enforcement action where the risk would not derive directly from the infringement, but from a failure of the process - such as not producing a written safety policy, or not consulting safety reps.

Under "Consistency" in para 16, we would suggest a change in the wording to say "the duty holder’s history of previous incidents and breaches of the law."

In para 17, we believe that the Commission needs to add guidance for inspectors about when information should be made directly available to Directors of enterprises, rather than to their immediate representative on whom enforcement notices are usually served.

In the list of bullets under para 18, the text should also set out what inspectors will tell safety reps.

Investigations

Under para 22, we believe that the Commission should reconsider the use of the term "gross breaches", as this wording can give only the most general guidance.

In para 24, the TUC believes that one of the factors which inspectors should weigh up when deciding whether to investigate is whether managers have been given a bona fide warning that they are in breach of the law, for example (but not exclusively) by a safety rep.

We also believe that in the third bullet under para 24, there should be some reference to how systematic the breaches are. For example, in the case of the London Underground, HMRI clearly felt that the pattern of breaches gave them more cause for concern than the breaches on their own.

Finally under para 24, there is an omission which the TUC believes needs to be remedied. Although later in the text (see para 30) the attention of inspectors is specifically drawn to the management chain in terms of prosecution, this point is not made under investigation, and it should be.

Prosecution

The TUC believes that this section (para 25 fl) would benefit from the description of the purposes of prosecution in the courts used by the Lord Chancellor (on more than one occasion, but specifically when he spoke at the launch of the TUC/British Safety Council report on fines at the end of 1999). We believe that these add considerably to the authoritative nature of the draft text.

Under para 28, just as in para 24, we believe that inspectors should treat events more seriously if the duty holder had been warned of the likely breach by a respected source like a safety rep.

Also on prosecutions, inspectors should be reminded of action they could take if they decide not to prosecute, for example to serve notices, issue a caution etc.

In para 32, the TUC believes that the courts should be given responsibility (or encouraged by HSE to take it upon themselves) to find out the financial state of an organisation up for trial.

Owen Tudor
Senior Policy Officer
Prevention, Rehabilitation and Compensation