To be published as HC 1344-vi




Scottish Affairs Committee


MONDAY 5 December 2011



debbie hutchings, HARRY frew and jake malloy

Evidence heard in Public Questions 582 - 779



This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.


Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.


Members who receive this for the purpose of correcting questions addressed by them to witnesses are asked to send corrections to the Committee Assistant.


Prospective witnesses may receive this in preparation for any written or oral evidence they may in due course give to the Committee.

Oral Evidence

Taken before the Scottish Affairs Committee

on Monday 5 December 2011

Members present:

Mr Ian Davidson (Chair)

Graeme Morrice

Iain McKenzie

Mr Alan Reid

Lindsay Roy


Examination of Witnesses

Witnesses: Elena Fry, Brodies Solicitors, the Forum of Insurance Lawyers, Patrick McGuire, Thompsons Solicitors & Solicitor Advocate, and Gordon Dalyell, Digby Brown Solicitors, Association of Personal Injury Lawyers, gave evidence.

Q582 Chair: Welcome to this meeting of the Scottish Affairs Committee. We are investigating health and safety in Scotland. As you may be aware, this was prompted by the statistics for Scotland being worse than those in England and Wales, and we have lobbying for a period about this. I wonder if we could just start off the formal session by asking you to introduce yourselves, indicate on whose behalf you are speaking and what experience you and your organisation have in dealing with these issues for the record.

Elena Fry: My name is Elena Fry and I am a solicitor with Brodies LLP, but today I am representing the Forum of Insurance Lawyers, whose members represent organisations and businesses defending compensation claims in the civil courts, and also prosecutions by HSE, and also represent their interests at fatal accident inquiries.

Patrick McGuire: I am Patrick McGuire. I am a partner with Thompsons Solicitors in Glasgow. I am here today representing my firm. Additionally, Thompsons act for a majority, if not all, of the trade unions in the country. I have, therefore, a great deal of experience dealing with such matters. From a health and safety perspective, my firm have campaigned for years on many issues around health and safety, and I personally served on the expert panel that Cathy Jamieson, the then Justice Minister in Scotland, set up to look into corporate homicide.

Gordon Dalyell: My name is Gordon Dalyell. I am a partner with Digby Brown Solicitors, but I am also a member of the Association of Personal Injury Lawyers and am the Scottish representative on their executive committee. It is a national organisation and there are around 4,500 members across the UK and around 170 in Scotland. We act predominantly for pursuers, victims of injuries at work and in other fields, and again, we are a campaigning organisation.

Q583 Chair: Fine. Okay. First of all, you would be aware that the statistics demonstrate that Scotland has got a worse accident record than the rest of the UK. We got a report from the National Audit Office explaining a certain degree of the discrepancy being because of the different format of the workforce in Scotland. Do you have any observations as to why the statistics in Scotland should be worse? When we throw a question open here, we will just let you fight amongst yourselves who gives the answer but in a sense this is relatively formal. If somebody is ready to come in. No?

Elena Fry: No, no observations other than I did see the data from the National Audit Office, and it made a lot of sense to me because I don’t think, as a solicitor in private practice who advises organisations and businesses, that there is necessarily less of a rigorous approach to health and safety by businesses or organisations north of the border than there is in England and Wales, but we do have a high proportion of agriculture and construction in Scotland.

Chair: That is right.

Elena Fry: For example, of the 15 fatalities last year in the workplace, nine were agricultural-related deaths, so that gives you a flavour of the skew in Scotland.

Patrick McGuire: My own observation would be that those statistics may take you some way down the road. I don’t know if it is the whole picture, but the fact is there, that Scotland clearly represents a country where things are worse, and my own anecdotal observation on the matter is that there may be certain things that come into play there. One thing that I have referred to in the document I submitted to the Committee is when you look at the post-accident litigation, i.e. to obtain just compensation, in fact it is significantly cheaper from a legal cost perspective to injure people in Scotland than it is in England. That, of course, is in many ways completely the antidote to this compensation culture proposition that has been touted about south of the border, and I simply ask the question whether or not that has anything to play in relation to it. On any analysis, Thompsons and the trade unions that we represent are clearly of the view that health and safety is not being taken seriously enough up here by employers and that something needs to be done about it. Whether that is through changes to the primary legislation or not is something that we can only explore further.

Gordon Dalyell: It may be down to the types of work carried out in Scotland and also the geography, which I think has already been touched on in evidence given to the Committee.

Q584 Chair: Okay. Let us move on to the numbers of prosecutions. The data that we got from the NAO showed that the number of prosecutions recommended for progressing by the HSE varies but does not seem to show much of an either upward or downward trend. Do you have any explanation for this or are you surprised that the HSE does not recommend more cases for prosecution?

Gordon Dalyell: I think the level is quite low. The numbers vary but last year I think it was-depending on which figures you look at-38 or 45 prosecutions. The interesting figures to look at are the number of major injuries in Scotland-around 2,600, in addition to the 15 fatalities-which is down, but it is still 15 too many. You are looking then at a prosecution rate of something around the region of 2% to 3% for major injuries or fatalities. In addition, 7,500 injuries have been reported under the RIDDOR regulations on an annual basis, so you are looking at over 10,000 injuries that have been reported to the HSE, with a prosecution rate of, what, 30 to 40 per year.

Q585 Chair: So, why are prosecutions so low?

Gordon Dalyell: I have to say really that is primarily a question, I suspect, for the HSE, but it seems to be a question of resource. The HSE, in our experience, tend to concentrate on serious cases, i.e. fatalities and very serious injuries, and in most cases they will look at prosecution. It may well be of course that there are cases where there is equally as culpable a failure on the part of an employer to comply with health and safety legislation but through good fortune there is not a serious injury, or indeed a fatality. Again, it is something that probably comes down to resource.

Q586 Iain McKenzie: Would you say that not prosecuting in the less serious cases is just storing up problems for the future when you will have to investigate and probably prosecute on more serious cases?

Gordon Dalyell: Potentially, yes.

Patrick McGuire: Yes, I would agree with everything Gordon had to say. I think really we should open this out as well to not simply the prosecutions. We need to look at the length of time it has taken.

Chair: We are coming on to that.

Patrick McGuire: Yes.

Chair: Right.

Patrick McGuire: Okay, we will come back to that.

Q587 Chair: But at the moment it is a question of, are you surprised that the Procurator Fiscal does not go for more prosecutions, and is there an explanation for that? We will be seeing them in due course, but we want your observations.

Patrick McGuire: I would agree they are low. I would agree that resources must be part of the issue, and that is also why I think we need to look at being a bit cleverer with their resources in looking at things such as the hotline that I suggested in my paper, whereby in an anonymised way, we are going to put the power into the hands of the people that know best. Those are the people that are there, the employees themselves, so that if there is a problem- coming to your point, Mr McKenzie, about not ignoring small issues-we will know exactly what is going to be a problem before an accident happens at all. If we have some kind of hotline where they could feed that into the HSE and where, through protocol, procedure or legislation, the HSE are bound to investigate and bound to take action, I am quite sure we will see a difference.

Gordon Dalyell: There is also a question of behaviour and culture, I know one issue, is that of insurance and a number of employers who do not comply with their obligations under the Compulsory Insurance Act, and that is when you tend to find that employers who do not have insurance tend to be the ones that will cut corners and will not be adopting safe practices. That is an issue that I think the Committee should be looking at.

Patrick McGuire: I think anecdotally, and it is purely anecdotally, because I cannot back this up with statistics, that this comes on to the construction point. We mentioned that construction is big in Scotland, and that may be an issue. To pick up Gordon’s point on the lack of insurance, within the construction industry you have sub-sub-sub-subs, where the attitude is absolutely endemic of, "No, I don’t employ this guy, I don’t need insurance, I don’t need to worry about that," but actually you do.

Q588 Chair: That does not cover the point about the number of prosecutions though, does it? These are valid points, but on this section we are concerned about whether or not the number of prosecutions is correct, and I think you said that it is a question of resources in your view, and nothing else, unless I am mistaken. I just wanted to see whether or not that was confirmed by yourselves.

Elena Fry: Resources might be an issue, but I would say that prosecution is not the only remedy. Enforcement notices-instead of storing up problems for the future-can stop bigger problems from happening. That can be an alternative remedy to prosecution where, for all intents and purposes, what is to be gained from the prosecution?

Chair: Yes, I do understand that. Going forward, obviously there are alternatives, but given the situation we are in just now, there seems to us to be a lack of prosecutions. If it is simply, as far as you can identify, solely a question of resources, that is clear. I just wanted to be clear whether or not there were any other observations that you had.

Q589 Iain McKenzie: With the NAO study on the major injury cases that were investigated, we see a reduction in Scotland from 11% in 2007-08 to 6% in 2009-10. I am just wondering what trends you can infer from this data.

Gordon Dalyell: I think you have to look at actual numbers, because according to the stats we have from HSE, there were around 2,800 or so in 2006-07, going down to 2,645 at the end of last year. That is a real-terms deduction of over 150, though it still means over 2,500 people having major injuries. Now, a slightly different point perhaps, but there is the issue of under-reporting that I know the Committee has touched on before, and while the numbers are going down and I think we would all agree probably the number of accidents happening in the workplace has decreased, certainly over the last decade, you still have 2,500 people being subject to major injury in the workplace.

Q590 Chair: Right. This point is the reduction in the number of investigations. Do you have any comment to make on that? Do you think that is reasonable or, again, is this just simply a question of resources, as far as you are aware, or is there something else? We are strangers to this land, and this is not going to be our life’s work, and therefore we are trying to pick the brains of those of you who know far more about it than we do. We have this situation where the reduction in major injuries being investigated is taking place and I am just looking for why.

Elena Fry: It may be a resourcing issue. I really think it is a question that has been answered by the HSE.

Gordon Dalyell: I think there is going to be a difference here between the major incidents that have taken place and the ones that have been investigated. Although the stats may look as if we are going in the right direction, they are simply not investigating as many.

Q591 Graeme Morrice: Maybe if I can address this to yourself, Patrick. In your evidence, you have stated various reasons that contribute to the long delays with criminal prosecutions, commenting that there were significantly quicker rates and convictions for murder and culpable homicide. What are the differences in the process between health and safety prosecutions and murder and culpable homicide? Could you also comment on possible reasons for the differences and give any recommendations as to how these delays could be improved?

Patrick McGuire: The Health and Safety Executive are involved in the investigation of the safety crimes, of course, as opposed to murder and culpable homicide. The statistics they have produced, however, speak for themselves. We have the letter from the Crown Office Prosecution Service, which shows the speed of investigation, prosecution and conviction for murder and culpable homicide standing in stark contrast to the position in relation to health and safety crimes, in particular the more serious ones.

Why is that the case? I suspect part of it is down to resource. I, however, strongly believe that part of it is down to an attitude, and I want to use the word as neutrally as possible, but a mindset within the specialist unit that has been set up within the Crown Office and Procurator Fiscal Service dealing with these types of health and safety crimes. It seems to be that there is, from an outsider looking in, certainly somebody who deals with cases, deals with people who have lost loved ones and who are waiting on prosecution or not to allow them to move forward and then to ultimately lead to a claim or not, helping these people through the process and, therefore, speaking to the Procurator Fiscal on a day-to-day basis; there seems to be more of a willingness to give the companies time and the solicitors time to effectively agree a form of words as to what the indictment says about what happened.

So, it is almost a quasi-civil process they are going through, and no doubt lawyers will have an eye on what may happen in terms of any civil case. Can they throw in a certain form of words that may build up into a picture in relation to contributory negligence? Can they put it in a way that might in some way ameliorate against a civil claim? I don’t know, but for an outsider looking in, there appear to be very elongated processes before a narrative can be agreed and before a company is willing to plead guilty, which just does not happen with culpable homicide and murder.

Elena Fry: Can I just come in on that in terms of a follow-up?

Graeme Morrice: Of course, yes.

Elena Fry: What I would say is that generally if you have an industrial incident, technically it can be very complex and so from the outset of any incident occurring, there has to be an investigation, a fairly detailed investigation as to the circumstances of the incident. This can involve wheeling in experts from all over the country to get to the bottom of what actually went wrong.

Second of all, the crime is based in statute rather than it being a common law crime, so technically it is complex in order to establish, if we are going to prosecute an organisation, upon what basis are we going to prosecute them, what regulations, what Act of Parliament have they breached? Then the evidence has to be gathered in order to prosecute that crime and prosecute it effectively. Technically, where there is a workplace death or a workplace major incident, on a matter of technicality, it is just a bit more complicated and can take longer to find out, first of all, what went wrong and then, second of all, gather all of the evidence in order to prosecute it effectively.

Patrick McGuire: I am going to suggest it tends to be the other way round, which is that the Procurator Fiscal Service does tend to get their evidence fairly quickly and does have a fairly early clear view, with the assistance of Crown counsel, as to where it is going. But it is when that process of negotiation begins and when defender firms get involved that we start to hear the arguments about them requiring to undertake all this detailed investigation to allow this process of discussion to take place. The question is, should they be given that much hope?

Q592 Graeme Morrice: Gordon, is there any comment on this you would wish to make?

Gordon Dalyell: I suppose we have had the setting up of the specialist division within the Crown Office and Procurator Fiscal Service and it may be that it is still early days to see the full effect of that. I have to say from our own members’ experience, it is still taking quite a lot of time for cases to be investigated, and as Patrick says, it causes difficulty when dealing with relatives because it can often be a year to 18 months before any significant progress is made.

Q593 Chair: Sorry, can I just clarify what is being done during that year to 18 months then?

Gordon Dalyell: What is happening is that the HSE and the Crown Office and Fiscal Service are investigating circumstances of the accident. As Elena was saying, sometimes they will need to get experts involved to ascertain precisely which statute has been breached. Again it comes down to a question of resource, I suspect, because in other situations the Crown have far more stringent time limits in relation to murder and culpable homicide, so they have to cope with those pressures.

Q594 Chair: Sorry, could you just clarify that? The Crown are under greater pressures in terms of timing for murder, because they have to produce a case within a certain period?

Gordon Dalyell: Yes.

Q595 Chair: That does not apply to health and safety legislation?

Gordon Dalyell: There tend to be extended time periods in health and safety matters.

Q596 Chair: When you say, "tend to be", is that somebody agreeing to do that, or it just tends to be longer? I genuinely don’t quite understand that.

Gordon Dalyell: Elena may be able-

Elena Fry: There is no statutory time limit for bringing a prosecution under the Health and Safety at Work etc. Act in the same way that there might be statutory time limits imposed on the time for prosecuting a common law crime such as a breach of the peace or culpable homicide or something like that.

Q597 Graeme Morrice: Do you think there should be?

Gordon Dalyell: I do.

Patrick McGuire: I agree.

Elena Fry: The only danger with the time limit is that you might have some very technical difficult multiple fatality incidents not being sufficiently able to be prosecuted within that timescale and, therefore, you might be in a strange situation where you want to prosecute but you cannot if you impose a timescale. I do not think we can over-emphasise how technically complex some of these incidents can be, and getting to the bottom of precisely what happens in industrial incidents involving loss and interviewing what can be numerous witnesses in order to clearly establish the facts, because if the Crown and the Health and Safety Executive get those intrinsic facts wrong, then a prosecution will fail.

Q598 Chair: I can understand that, but presumably there are some murder cases that are straightforward, and there are some that are incredibly complex. The same thing would apply. If we work on the basis that there is a bell curve for each of them with simple ones at one end, it just seems that with the health and safety ones, the timescale has been moved quite considerably to the right. That does not seem to be sensible, if it is not any more complex than some of the others. I understand your point, but surely it would be entirely possible to have some system where exceptions were granted and a strong case was made and so on.

Gordon Dalyell: You would apply for an extension of time.

Patrick McGuire: Absolutely.

Q599 Chair: That is doable, isn’t it?

Gordon Dalyell: Absolutely. In a murder or a culpable homicide situations that often happens where if the defence need more time to investigate, then they will apply for an extension of time.

Q600 Graeme Morrice: Notwithstanding the various caveats you have put into this, what can be done to speed up the process? You are obviously saying that part of the problem is the lack of resources and clearly the resources are finite-everyone is arguing for more money-but is there any other tangible way that one can go about trying to speed up the process?

Patrick McGuire: The most extreme example is, legislation could be brought in to impose time limits.

Graeme Morrice: Yes, with exceptions.

Patrick McGuire: That is one level, to introduce with exceptions. Protocols and procedures could be put in place, or this Committee could put questions to the Service and ask them to voluntarily work towards this.

Q601 Chair: Is there any reason why the same thing that applies to murder and-what is the other term?

Graeme Morrice: Culpable homicide

Chair: Culpable homicide, right. Should not be applied here if there was a system of exceptions that can be applied for and granted, because it seems to me that if you have rules that say that such and such has got to be dealt with in a certain period and another situation, when you don’t have the rules, then one is potentially going to slip more than the other. Now, you are vigorously shaking your head. That is not recorded by Hansard, but Ms Fry was shaking her head vigorously, for the record. You seem to be objecting to that. What is your objection to that?

Elena Fry: I think it does not solve the problem. If you are going to impose time limits, you want to have a system whereby you can effectively prosecute all of the crimes that you want to prosecute within those time limits, otherwise crimes that should be prosecuted won’t be prosecuted-it is a question of resource.

Q602 Chair: So is that not dealt with by exemption, exceptions?

Elena Fry: In general terms, if you have a statutory time limit for prosecution, you tend to have to stick to it. That is the time within which the Crown must bring the prosecution proceedings, and if they don’t, then they are barred from bringing those proceedings, so if you are going to impose a time limit, you have to be very careful that you have the adequate resources in place that can prosecute properly all of the crimes that you want to be prosecuted.

Q603 Chair: How do you two respond to that?

Patrick McGuire: Well, we would always look for as much resources as possible to be given to both the HSE and the relevant sections of the Crown Office and Prosecution Service. We seem to be dealing with the situation in our discussions at the moment where the exceptions, the particularly difficult cases, are ruling all the other cases, such that it is unswervingly my experience that all cases take far longer than they should. That is the problem, that is the mischief, and if the way we go about addressing that is to introduce time limits, then that is surely what we do, but with sufficient caveats in place whereby your applications can be made to extend the time limit in such a way that there will be a happy medium where the resources will be able to match up.

Q604 Iain McKenzie: Try and help me understand-I need more of a legal brain to understand where you are starting from and where you are going. It seems to me that you were implying that you started from the breach and then looked at what evidence would support that level of breach, rather than look at the evidence and then apply it in the other direction. Is that the same thing?

Elena Fry: No. If you are talking about an incident, generally you look at an incident, find out what happened and then find out what regulations or Acts of Parliament have been breached and gather the evidence that you absolutely need in order to secure a conviction under those regulations or under that Act. In industrial incidents it tends to be under the Health and Safety at Work etc. Act and any subordinate legislation that applies to that,

Q605 Iain McKenzie: So the process would be to look at the incident, gather the evidence, level of breach?

Elena Fry: Yes.

Q606 Iain McKenzie: Right, okay. It sounded to me as if we were going in the opposite direction almost.

Elena Fry: No. You would always start with the facts and then with the particular industry there will be your regulations that they have to comply with or statutes that they have to comply with, and you are looking at trying to formulate a charge sheet that might have a breach of five different sets of regulations on it. What you need is the evidence in order to substantiate all of those charges because there is no point in having a system where you are not given enough time to gather up the evidence that is going to get you the conviction that you want at the end of the day. You are looking at me as if I have not answered your question.

Iain McKenzie: I certainly get the-

Chair: I think it is fair to say that we are not the brightest.

Iain McKenzie: Speak for yourself.

Q607 Chair: You’ve got to explain this so that ordinary people understand.

Elena Fry: When an industrial incident happens, I cannot speak for HSE because I don’t work for HSE, but an inspector from HSE will have a gut feeling about what bits of legislation have been breached and that will no doubt direct their investigation so that they are gathering up as much evidence as they can in order to feed to the Crown the evidence that they need in order to prosecute under whatever Acts or whatever sets of regulations have been breached in order to secure a conviction.

Q608 Iain McKenzie: What part of that process is the most lengthy?

Elena Fry: It depends from case to case. I am a solicitor in private practice, and members of FOIL will, depending on the seriousness of the incident, almost be instructed to represent an organisation right away, so I have seen investigations by HSE concluded in six weeks. Equally, I have seen investigations go on for many months. It depends on the nature of the incident. The six-week example that I have given you was a fatality, but it was a very straightforward case, the circumstances spoke for themselves, and HSE were able to conclude their investigation within a six-week period and produce a report to the Crown Office and Procurator Fiscal Service, and that case proceeded very quickly with a prosecution.

I have seen, and members of FOIL have seen, a slowing down when it gets to the Health and Safety Division now of the Crown Office and Procurator Fiscal Service, and that may be a resourcing issue, but it depends from case to case.

Gordon Dalyell: I think that is right. The initial investigation can take a certain period of time, but once it gets to the Crown Office and Fiscal Service it will slow up, because they are looking at it again and looking at it from an evidential point of view. That is where our members’ experience would suggest that if there could be better co-ordination between the HSE and the Crown Office in relation to the initial investigation, that might speed things up.

Q609 Chair: But surely there will be a similar process for murder whereby the police do the investigation and then it goes into the prosecution and then they investigate or examine the whole thing again. So it is an exact parallel isn’t it?

Gordon Dalyell: To an extent, but it tends to be the way in which the Fiscal and the Crown Office look at the evidence. They rely on the evidence produced by the police and maybe direct certain further inquiries, but they tend to make decisions quicker. It does not take the length of time that we seem to be experiencing in the health and safety cases.

Q610 Mr Reid: What is the time limit for prosecutions for murder and culpable homicide?

Elena Fry: I don’t know.

Gordon Dalyell: It is the same process as that the Chair pointed out.

Q611 Mr Reid: Is there a statutory time limit?

Gordon Dalyell: No. As I said, if it is a common law offence, no.

Q612 Mr Reid: Sorry. I thought you were saying that because there was not a time limit for prosecutions there, they tended to happen quicker?

Gordon Dalyell: I think we may be at cross purposes. Once somebody is charged with murder, then there are very strict time limits.

Mr Reid: Right, sorry.

Gordon Dalyell: So what happens is that the level of resource attributed to these cases is quite significant on the part of the Fiscal and the Crown Office, whereas I think that there is not the same level of resource attributed to health and safety cases.

Q613 Mr Reid: So you see the problem as being in the Crown Office and Procurator Fiscal Service rather than HSE?

Gordon Dalyell: Or a combination.

Q614 Mr Reid: Sorry, it is in both?

Gordon Dalyell: In both, yes.

Q615 Mr Reid: Can you explain again the time limit-it is from what point to what point?

Gordon Dalyell: Well, if somebody is charged with murder-

Q616 Mr Reid: So it is from the point of the charge?

Gordon Dalyell: They will be charged on that and I think they would appear on petition.

Q617 Mr Reid: Right, and how long is that time limit?

Gordon Dalyell: Well, they are then required to-

Elena Fry: You are having to go back into the recesses of your brain.

Q618 Mr Reid: We can probably find out from somewhere. Are you recommending that a similar time limit should then be put in place for prosecutions under health and safety?

Gordon Dalyell: We are recommending additional resource be given to, in particular, the Health and Safety Division of the Crown Office and Procurator Fiscal Service to try and speed up the prosecutions as much as possible.

Mr Reid: Okay, thanks.

Q619 Graeme Morrice: NAO’s evidence states that the conviction rate in Scotland is 94% in 2009-10, which is consistent with that for England and Wales. Does this not suggest that the system in Scotland is delivering the same level of success in Scotland as in England and Wales?

Elena Fry: I don’t know the answer to that, but what I would say is that in the last few years, since the Division has been established in Scotland, it has been very effective in securing prosecution in contrast with what the situation was before we had the specialist division. That might be comparable with the situation in England and Wales, because in England and Wales we, of course, have HSE taking forward the prosecutions, whereas in Scotland we have specialist prosecutors in health and safety law taking forward prosecutions. I think the current system, in terms of prosecution, is delivering and is comparable to England and Wales.

Patrick McGuire: Purely on conviction terms, that may be correct, but convictions are not the whole picture. We have spent a lot of time discussing times-that really to me is the more important issue and where the problem lies in relation to individual offences. Yes, we may be the same as England and Wales, but that is not to say the position in England and Wales, nor the position in Scotland, is correct. I think in terms of focusing minds, making places safer, that is where there ought to be far more individual offences taken forward, but that again is a different matter.

Q620 Chair: Yes, anything that gives a 94% success rate tends to suggest that they are only shooting at open goals, doesn’t it? Is that your observation, that they only really pursue cases that are absolute certs and that there is a risk aversion around taking cases that might fail?

Elena Fry: That is not my experience. My experience is that there is a general tendency and a desire to prosecute. The statutory framework is such that the obligations are quite stringent on employers and, therefore, if something has gone wrong, there tends to be almost a presumption that liability or guilt in a criminal prosecution will be established. It is just a question of gathering the evidence to support that.

Q621 Chair: Relating to a previous point, we did have a reduction in the proportion of major injury cases investigated in Scotland from 11% to 6%. Now, if the number investigated is falling, you would tend to think, therefore, the number of prosecutions is falling and, therefore, they are only pursuing the ones that are absolute, absolute certainties.

Gordon Dalyell: Well, that then goes back to HSE, because if HSE are not investigating and not sending a report to the Crown Office and Procurator Fiscal Service then they cannot prosecute.

Patrick McGuire: But what I would say is, let us look at this way: if you look at the number of work-related personal injury claims there are in any given year, and you look at the number of those cases that resulted in some payment of compensation, and you then compare that with the number of people who were convicted for a health and safety crime, you will see there is a gulf between the two figures, and there must be a reason for that . It may be your point Iain, regarding only going for shooty ins. That may be the case, because in any view, if there has been a sufficient breach of the health and safety legislation for there to be a payment of compensation in a civil matter, then albeit the standard of proof is different, both in terms of beyond reasonable doubt and the need for corroboration, every one of those cases ought to be capable of a successful criminal prosecution if the picture was built up properly. Why that is not the case is anyone’s guess.

Elena Fry: That is not quite right, because the standard of proof is-

Patrick McGuire: Yes, that is right. I said subject to-

Elena Fry: It is quite different.

Q622 Chair: We always like a bit of an argument among the witnesses. The officers understand. I am sure the man from Hansard will want to see you afterwards about your technical legal term, "shooty in". I am sure you can spell that out. Let us be clear about this disagreement between you, what are you saying?

Elena Fry: If I understood Patrick correctly, I think he was saying that if you have a successful personal injury action, a civil claim for damages, which arises from a breach of health and safety legislation or regulations, you should be able to have a criminal prosecution arising from the same incident.

Patrick McGuire: Capable of successful prosecution.

Elena Fry: But the different standard of proof between civil liability and criminal guilt is quite significant, because if you are going to have a successful civil damages claim, you just have to prove your case on the balance of probabilities, but in a criminal prosecution you have to have evidence that establishes a breach of the regulations or the legislation beyond all reasonable doubt-a much, much higher test. So it does not naturally follow that because you have a successful civil damages claim, you are going to be able to have a criminal prosecution.

Q623 Chair: But would you not expect then in those circumstances that that would be a justification for a higher failure rate of prosecutions?

Patrick McGuire: Absolutely.

Chair: Because you have reached one level but you had not reached the other level?

Patrick McGuire: So they are not trying?

Q624 Chair: Help us with this. We are unhappy about the fact that there are so many accidents in Scotland. We are looking for ways in which we can improve the situation. Some of that is education. Some of that is clearly deterrents-we have to try and pursue the question of what deterrents would work, which is why I think we want to pursue this line of argument with yourselves.

Elena Fry: Well, I don’t think the Health and Safety Executive and the Crown Office and Procurator Fiscal Service should be in the business of prosecuting crimes, or perceived crimes, if they are not going to be successful. I think that is a massive waste of resource and it is a massive waste of court time. They should be sending the message that if they are going to prosecute, and they decide to prosecute, that prosecution is going to be successful.

Chair: Yes.

Elena Fry: Coupled with the big increase in fines because of the Sentencing Guidelines Council guidelines on fines for health and safety offences coming into effect in Scotland really substantially this year, that acts effectively as a deterrent. Business know if they have an incident and they are going to be prosecuted, the chances are they are not going to be able to plead their way out of it.

Q625 Chair: Right, okay. I think I understand much of that. Do you think that is fair?

Patrick McGuire: I accept entirely that the Fiscal Service should not be advancing matters that are not fair, just prosecuting for the sake of it, but the statistics still speak for themselves and one may, therefore, still ask, are they prosecuting enough? I still think a big question remains there.

Q626 Mr Reid: What evidence do you have that they are not prosecuting enough?

Patrick McGuire: It comes back to the point that has been made, which is they say that 94% success rate shows that they are putting their standards at a very high level as against the extremely large number of potential matters there are in any given year, which they decide not to even investigate, let alone not to proceed with.

Q627 Mr Reid: Do you know what the success rate is for other serious crimes such as murder and culpable homicide?

Patrick McGuire: I am afraid I don’t know. That can obviously be very easily found out.

Chair: We can get that. The same point had occurred to me.

Q628 Mr Reid: Just one other thing to pursue here. I would have thought that with health and safety cases, orderly evidence would be physical evidence, a defective piece of machinery, for example, whereas in the likes of murder, culpable homicide, often a lot of the evidence will be witnesses. Again, I put the proposition to you that when you have physical evidence it is easier to predict what will happen in court, whereas when you are relying on witness testimony, it may be a lot harder to predict, because when the defence solicitor gets to work the witness may crumble. Is that a fair supposition?

Patrick McGuire: I don’t think it is fair to say that witness evidence is not important in health and safety prosecutions. It still is. There can be issues around directions given and there can be lots of different matters that are required to be explored with witness evidence. I think your point is very well taken that there will be perhaps more emphasis on physical matters such as the state of the workplace, broken tiles, lack of harnesses, whatever it may be, but witness evidence will still be very important.

Mr Reid: Okay, thanks.

Q629 Iain McKenzie: You have probably answered most of the next set of questions in the previous series, so I will just skip to some of the other ones. What would you suggest could be have done to reduce the amount of time taken from report of an incident to prosecution?

Elena Fry: I think it comes down to resource. If you had enough prosecutors dealing with cases, they would get through them a lot quicker.

Gordon Dalyell: And the co-ordination between the HSE and Crown Office that the setting up of the Division was designed to address-but I think the Crown Office and HSE would be better placed to comment on that.

Patrick McGuire: I also think, whether it is in statue or not, having some form of time limits or deadline to work towards, why can they not-as an organisation-set themselves deadlines even in that most basic level, so that they would have standards they would expect to work to, why can that not be done?

Chair: A benchmark.

Patrick McGuire: Absolutely.

Q630 Chair: I don’t have any knowledge of international parallels, but is there benchmarking abroad? Is there an expectation that things can be done within a certain timescale?

Elena Fry: I don’t know the answer to that.

Q631 Chair: Could I just pick up one point relating to this question of delays? Were you just about to raise that?

Iain McKenzie: Yes, the APIL gave an example of a fatal injury case that was submitted on 15 December 2008. The sequence of events has taken place and the matter is now with the Procurator Fiscal Service and the case is approaching a time bar on 15 December this year. The member client, who is a widow, still does not have any information regarding her husband’s death

Gordon Dalyell: Yes, that is an example of one of our members, and the action required, I assume, has been subject to delays, because the time bar is in a few days’ time, and that is not uncommon. Some of it is the lack of communication between the authorities and the family, and just a lack of information about what happened. This is an experience shared by solicitors at Thompsons where what relatives are looking for most of all is an explanation as to what happened.

Q632 Iain McKenzie: So are you saying this is not unique?

Patrick McGuire: That example is extremely common, far too common, and I could cite another 10 on top of that very easily just from my firm’s experience, and through APIL we could probably double that.

Q633 Chair: Can I just be clear though about what is meant here by time bar, because I always thought that there was not-you indicated earlier on-

Gordon Dalyell: In civil cases, in civil proceedings, you have to raise and serve these within a date of three years from the date of the accident. If somebody is killed the relatives have a claim but they have to raise proceedings within three years. Now, it is often the case that if either a criminal prosecution or an FAI has not been resolved within that period, you would still be required to raise those civil proceedings to protect the position of the family members.

Q634 Chair: Are you not able just to start the process?

Gordon Dalyell: We start that process and sometimes the process is suspended pending an outcome. On the other hand, if we feel that there is sufficient information available to proceed with the case, then we will do that, because a case will take up to a year, maybe longer, to go through the civil courts, so that is adding to the time.

Q635 Chair: Right. This is an issue-but there was nothing forfeit in these circumstances? As long as you put down the marker before the three years, you can still pad it out, expand upon it later on, so there is nothing missed out as a result of that, there is no opportunity to claim this, that or the other that is forgone?

Gordon Dalyell: As long as you raise the case within a three-year period, yes.

Chair: Right, okay. I had not quite understood that.

Q636 Iain McKenzie: Forty-four per cent of the cases where criminal charges were brought have ended in no charges. Can you comment on that?

Patrick McGuire: What was that per cent? Sorry, yes.

Iain McKenzie: Forty-four per cent of cases.

Patrick McGuire: This is fatal accident inquiries rather than the criminal prosecutions. This is an important point. Under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, there are two categories of fatality where a fatal accident inquiry is described as mandatory. That is either a death in custody, which we are not talking about today, or it is a fatality in a workplace. According to the Act, in every case where there is a workplace fatality there ought to be a fatal accident inquiry.

There is an exception to that. The exception is whereby there is a prosecution and where the Lord Advocate takes a view that enough evidence has already came out, that basically the picture is clear.

Now, in our experience, that particular exception is used far too often when there is a workplace fatality and the decision is no need to go for the FAI at all. That is the first thing. And the second thing is, you will see from the other statistics that there is 27% of our cases where no decision has been made yet at all. That comes back to the delay side of things whereby it just takes so long for the criminal prosecution to take place that the Crown Office do not even turn their minds to there being an FAI until after that.

Just to pick up on your point Iain, it might help crystallise it in your minds that there are effectively three stages of an investigation or inquiry following a death in the broadest sense. There is a criminal investigation and possible prosecution. Not until that is resolved practically, will anyone turn their minds to whether or not there is an FAI, a fatal accident inquiry, so that is the second stage but not until the criminal matter is concluded. Then the third stage is the civil claim that the court will ask you for compensation and, again, albeit that the civil claim can kick off at any stage, practically, in terms of evidence gathering, it very seldom happens until we are at stage three, i.e. until there has been a criminal prosecution and there has been an FAI.

Just because not until that point are all of the facts out there. To allow a civil lawyer to make an important decision of what to do, it is in relation to this middle stage that I think Gordon’s example is particularly apposite, the middle stage of the FAI because often what families want following a fatality is just to know what happened. It is not to see the person prosecuted or put in jail, it is certainly not to be compensation. It is just to know what happened and the problem is the way the system is here at present, because it takes so long for a decision to be made in relation to a criminal prosecution, these families are left totally on their own without any ability to move on with their lives for two and three years until there is an FAI and, of course, on occasion, there is no FAI at all.

To back up the example Gordon gave with, you know, the three years down the line, still being no prosecution, I will cite you one example that has been mentioned in documents before. There is a client of ours called Karen Thompson. Her live-in partner died in particularly horrific circumstances. His head was crushed when the tailgate of a lorry that he was working on closed on him, and it took four and a half years for the criminal prosecution to be resolved. As Ian said, we had to raise civil proceedings and put them on hold and the FAI was not until a year after that. This was five and a half years post before there was an FAI.

All that woman wanted to know was one thing and one thing only, and she fought for five and a half years to find that out because nobody ever told her, "Did my partner suffer?" That is all she wanted to know, that is all she was interested in. She did not want anybody put in jail. She did not want compensation. She just wanted to know in that act, with the tailgate hitting his head, did he suffer or was it instant death? It actually took until the FAI for that come out clearly. Now, there is something wrong with the system if that is the way it is.

Gordon Dalyell: Coming back to what we discussed earlier, that is a good example then of why that three-stage process and the length of time that it takes so that in criminal cases, if that is the first aspect that has to be dealt with, and whereas somebody who is perhaps charged with a murder and culpable homicide, usually the evidence is collected reasonably quickly. They are charged and then the trial process is, if they are in custody it would be completed within a matter of several months at the most, whereas in health and safety cases, it seems that the criminal prosecution time takes a huge amount of time longer and, in extreme examples like Patrick’s, into years.

Q637 Iain McKenzie: Who carries out the FAIs?

Patrick McGuire: The fatal accident inquiry is conducted by the Crown, and the Fiscal Service are always party to it-their goal is to bring out all the evidence-and then any other interested party, which will vary from case to case. It will inevitably involve the employer, or employers if there is more than one of them being represented. It will normally involve the family being represented, although on occasion they may feel sufficiently comfortable with the Fiscal they are working with. They say, "Oh, they will represent our interests fine." And there may, on occasion, be other interest groups: for example, in the example I gave you, the manufacturer of the lorry, although not an employer, may have wanted to be involved in the process. It is always the Fiscal Service, and then any other party who can apply to the Sheriff to become involved.

Q638 Iain McKenzie: So they all have to reach the same conclusion together, agree on it?

Patrick McGuire: Sorry, it is effectively a court case where witnesses will be in the witness box, so it is not like the coroner’s courts. It is very different to the coroner’s court system insofar as that is very inquisitorial where the coroner sits in the middle and brings it all out. Our fatal accident inquiry system, the most potent inquiry, is pretty adversarial. That is to say that there will be witnesses in the witness box who will be asked questions by the various lawyers, and in the end all those lawyers will have the opportunity to make closing submissions to the Sheriff to point the Sheriff in the direction of what they suggest he should take from the evidence, and what findings he should arrive at. The Sheriff will issue a determination that will set out certain factors that a Sheriff must highlight: the time of death, the date of death, and the cause of death, and then any other additional factors.

Q639 Iain McKenzie: Is there no limit on interested parties that can feed into this process?

Patrick McGuire: No. Other than once an inquiry is called, there will be at a very early stage what is called a preliminary hearing and, in fact, the rules require publication of the announcement of a fatal accident inquiry, so that will give people the opportunity to attend that preliminary hearing, to basically to ask the Sheriff if they can become party to it. The practical way that it is dealt with, in fact, is that the Fiscal Service really will know by that stage who all the lawyers are and which parties they represent, and they will write to them and say, "There shall be a preliminary hearing on such and such a date. Should you want to come along and ask to be part of the process, please do," and that is the practical way.

Q640 Chair: Could I ask just one thing, I mean, clearly this question of delay is extremely stressful for those involved. What I am not clear about is the extent to which the delay impacts upon the pursuit of health and safety for people at the workplace. If something has gone wrong, I can see that you obviously want to get it resolved, but the issue is not the operation of the Scottish Court Service and related matters, our issue is relating to health and safety. I can see that having cases prosecuted has a deterrent effect, and that is to some extent undermined if it drags on, but is there another feedback? To what extent is the fatal accident inquiry genuinely likely to identify practices that should be stopped as soon as possible, with Sheriffs making recommendations, or is that pretty clearly established early on and, therefore, this is just simply the legal tying up of the loose ends?

Patrick McGuire: In terms of the delays and the impact on health and safety, it is part of the overall picture, isn’t it, that we spoke about this morning? There are significant delays in fatal accident inquiries being held. It would appear there are significant delays in the investigation and prosecution of crimes through the Crown Office; there are significant numbers of fatalities and significant numbers that do not result in prosecution at all.

That affects the bottom line in terms of health and safety because of the attitude that that seems to imbue the message that it sends out. It comes back to the very first point I made in the document I submitted, which is that I don’t believe that health and safety crimes are viewed in the same way as commensurate serious crimes. The health and safety crime is not viewed as seriously.

Q641 Chair: Because its operation is a devolved matter, it is not our goal to identify issues to do with the Scottish courts system, except in as much as it impacts upon the operation of our health and safety regime.

Gordon Dalyell: I think what you are looking at is behaviour, and I think that, due to resource, there is going to be a limit on the number of prosecutions that can be brought, and the HSE and Crown Office will be able to tell you about that.

I suppose that if accidents do happen, then you could-and the point I was making earlier on about the impact on the insurance industry of taking civil claims, for example, can be very effective. I think that you will be aware of Professor Löfstedt, who provided his report last week, and he acknowledges that it is the impact of health and safety regulations that have been a prime driver in reducing the number of workplace accidents. Regardless of the number of prosecutions taken, it is the fact that these regulations exist and employers have to comply with them that has led to a reduction in the number of workplace accidents, particularly over the last decade. He also acknowledges that the obligations placed on employers by claims being made is another factor, and I think that is something that we need to look at as well because it is clear where employers have to pay increased insurance premiums because of the number of accidents and also because potentially they may face prosecution as a result of changes in the law, then it focuses their minds.

Q642 Iain McKenzie: With the fatal injury case, what is the range of punishments available and what is the most common handed out?

Elena Fry: If an organisation is prosecuted under indictment in the Sheriff Courts, then it is an unlimited fine. Individuals, if they are also prosecuted, can now be sentenced up to two years under indictment. Generally, as a rule of thumb now, the Sentencing Guidelines Council for England and Wales has set the benchmark for sentencing fatality and health and safety at work related offences and, generally, the fine will seldom be less than £100,000 and whilst that applies to England and Wales, it is referred to in the Scottish Courts and if you have a fatal accident that is prosecuted in the Scottish Courts, as a general rule of thumb, you can expect a fine of at least £100,000.

It will vary from case to case, depending on financial resources of the business, but there have been recent examples this year where, for a double fatality for example, outside of Oban, a couple of years ago, a company was fined £600,000. That is under appeal at the moment but that just tells you the level of prosecution, of a fine that has been handed down these days. It is different for a small organisation, maybe a one-man band-there was a recent example, Pitmachie Garage was fined £15,000 for a fatality. As a general rule of thumb it should be "seldom less" is the wording of the guidelines-"seldom less" than £100,000 for a fatality.

Q643 Iain McKenzie: What quantity of imprisonment would transpire then? The majority there you are telling me is fines.

Elena Fry: Yes.

Iain McKenzie: Depending on the circumstances, what sort of numbers do you have following through to imprisonment terms?

Elena Fry: I don’t have any information on that. I think that is something we would need to get from the Crown Office and Procurator Fiscal Service about how many individuals are being prosecuted and how many of those prosecutions translate into custodial sentences.

Patrick McGuire: My view would be anecdotally very small numbers of individuals and even less when it comes to prosecution. The statistics, I think, would be quite illuminating if you find them, because of anecdotal evidence, they are very small indeed and my own view is that it is when individuals are affected, that is when-back to Gordon’s point-minds will be focused and things will change.

Chair: Fine. Well, we can seek that information. Any observations? No, fine.

Q644 Mr Reid: Do you know what the heaviest fine that has been handed down is?

Elena Fry: In Scotland it was £15 million for Transco, but in recent years, the one I just referred to, the £600,000 for a double fatality, if it is not the second highest after Transco it is certainly the highest for a long time. I suspect some of the offshore fines might have been quite significant for some incidents in earlier years, but Transco still stands as the highest one.

Q645 Mr Reid: Do you think the sentences, whether it be fines or imprisonment, act as a deterrent?

Elena Fry: In my experience it does act as a deterrent. If I could take you back a few years to the passing of the Corporate Manslaughter and Corporate Homicide Act 2007, which came into force in April 2008, as someone who in private practice advises businesses-and many of the members of FOIL do-on how to manage their health and safety obligations, I know there has been a real increase in uptake in getting health and safety very near to the top, if not at the top, of the corporate agenda.

Just to come back on a point that Mr Davidson raised about learning after an incident: is it only when we have the outcome of an FAI that that learning is fed back to an organisation? I can tell you that if you have a serious incident what you will find-and the construction industry is a very good example of this-is that a safety alert will immediately be issued, not only to that organisation or to that site where an incident happened, but throughout the industry. That kind of learning is passed from businesses within industry sectors fairly regularly following incidents, so it is not left in isolation until there is a sheriff’s determination or a fatal accident inquiry. If there are lessons to be learned, if there is faulty equipment, if there is a bad system in place, that tends to be communicated very swiftly around the industry.

Q646 Iain McKenzie: Just quickly, you indicated that there was an appeal process. If a fine was appealed against, what is the duration that would add on to the case coming to a conclusion?

Elena Fry: I suppose it depends on the case, but as a rule of thumb maybe about six months.

Q647 Mr Reid: I have a question for Patrick. In your submission, you stated that health and safety is not being taken seriously in Scotland. The evidence that we have had from APIL shows that the number of employers’ liability cases registered to the Compensation Recovery Unit has decreased year on year. If that decrease is happening, why do you think that there is evidence that health and safety is not being taken seriously?

Patrick McGuire: My evidence comes from the cases that I see. I see repeat offenders. I see companies where the cost of resolving the problem before an accident is significantly smaller than the cost that they ultimately have to pay out on their insurance, and in compensation. It comes from my trade union clients that I speak to who tell me about workplace practices, that it is still not being taken seriously enough-as simple as that.

Q648 Mr Reid: Is the situation getting better even though you feel it is obviously not where it should be? Are things improving?

Patrick McGuire: It is difficult to say from my perspective, because I probably only see the bad side. I think in terms of the number of claims being registered with the CRU that may very well be correct, but we all know from some other investigations such as Sheriff Taylor’s investigations up here that, to be brutal about it, the ability of claims companies to advertise their wares can have an impact on the number of claims registered with the CRU. One thing Lord Jackson looked at was when certain changes were brought in 10 years ago to the civil procedure system in England claims companies emerged, there was huge amounts of advertising, and claims went up exponentially. That may be at play here because, of course, in Scotland we have never been in that area.

Gordon Dalyell: It is also interesting to note, I think, that while the number of HSE reported incidents has fallen, as indeed have the number of CRU reported claims-and, in fact, the CRU figures are perhaps a fairly accurate indication of how many claims have been made-the figures that we have had access to suggest that anything between 3,000 and 4,000 workplace accidents have been reported to the CRU. But if you look at the HSE figures you are looking-as we discussed earlier on-at a figure of over 10,000 reported incidents to the HSE. That is in addition to the issue of underreporting, which has already been raised. If anything, it suggests that perhaps there are maybe twice as many accidents taking place that are reported to the HSE but do not form the subject of a civil claim.

Q649 Mr Reid: There is a popular conception that there is a compensation culture. Are you saying that that is not the case in Scotland?

Gordon Dalyell: Absolutely. Well, in fact, I would say it is across the UK. Lord Young acknowledged that in his report because he referred to it as being more perception rather than reality. Professor Löfstedt in his report last week made exactly the same point. Again, I think that that snapshot of the HSE figures and the CRU figures are a very good example of something that, if anything, there is a culture of people who do not make a claim. In Scotland-Patrick will bear this out, I think-there is a history perhaps of Scottish people being quite stoical. They have an accident and actually say, "I will just get on with it." Three days off your work is quite a long time for some people in Scotland. I have to say my own personal experience and that of APIL members is that there are many cases where somebody will come to us for advice and we will make a claim on their behalf and the claim has never been anywhere near the HSE. This issue of under-reporting I think is a very live one.

Q650 Chair: Sorry, so there will be cases that you are pursuing for compensation that will then presumably be registered with the CRU but they have never actually been to the HSE?

Gordon Dalyell: Some that have not been to the HSE, but on any view-

Chair: That is right, there is not an exact-

Gordon Dalyell: Yes, under-reporting.

Q651 Chair: The CRU figures are not a proportion of the HSE figures; they are a proportion and some additional ones as well? Right, okay.

Gordon Dalyell: The CRU ones probably are the best indicator of how many claims have been made because every claim has to be registered with the CRU. As I say, over the last two or three years for workplace accidents in Scotland it is anything between 3,000 and 4,000.

Patrick McGuire: I would echo Gordon’s point entirely on the compensation culture. One other thing I think we should factor in is the economic downturn because I have seen plenty of people over the last few years who have just said, "I am not making a claim at the moment because it is not worth it, I am not prepared to take the risk of losing my job," even though, of course, there is protection so they will not, but that is what the perception is.

Q652 Chair: Sorry, can I just be clear, though? "I am not making a claim at the moment", is there a time bar on-

Gordon Dalyell: Three years.

Chair: Three years, right. So any time-right, okay.

Q653 Mr Reid: I suppose this is directed at Patrick first of all, but let the others feel free to come in. Patrick, if you feel that health and safety is not being taken seriously, what reforms to the law do you think could be made? Not necessarily legal reforms, other changes that you think to make employers take it seriously?

Patrick McGuire: I mention in my paper that one significant change that could be introduced without any legislation at all would be placing more power into the hands of employees, whereby they have the ability, through an anonymised hotline, get straight to the HSE and whereby there would be commensurate procedures whereby they would be investigated properly. That is one thing. When we are into the realms of legislation then I do think the fatal accident inquiry system needs overhauled entirely, and I have set out in my paper how that can and should be done. I think lessons can be learned from fatal accident inquiries that will result in improved health and safety conditions. I would say those are the main aspects that I suggest.

Q654 Iain McKenzie: What you are saying is, if an employer is found guilty and taken to the point of a fine and so on, the employee will still be apprehensive about going through with a compensation claim, even when his employer has been found guilty?

Patrick McGuire: That is possible, but the example I was giving was more somebody who the employer has not even been investigated, there has been no criminal process at all. They have simply had an accident and they are-

Iain McKenzie: But do you think that transpires in that scenario that an employer has been found guilty but employees have not-

Patrick McGuire: I would think in those circumstances the cat is out of the bag at that stage. The person has probably given evidence or been the complainer in the crime, so the cat is out of the bag by now.

Q655 Chair: Can I just clarify one point? You mentioned repeat offenders there. Are there presumably lists of offenders, those who have been found guilty and fined, that will be from court cases that you will have settlements?

Patrick McGuire: And also enforcement notices.

Q656 Chair: If, say, for the sake of argument in the construction industry we wanted to have a list of everybody in the construction industry that had been found guilty or fined for anything over the past five years, there would be no difficulty in identifying that?

Elena Fry: Yes, the Health and Safety Executive have a prosecutions database for England and Wales and Scotland and it lists on it any company that has been prosecuted and found guilty and what the fine was and what the breach was, and also if any enforcement notices have been served on that organisation.

Q657 Mr Reid: Would that also include the names of individuals?

Elena Fry: Yes.

Q658 Mr Reid: Because the thought that went through my mind was, if my company got a bad name I could change it tomorrow-so it would also include the individuals?

Elena Fry: Yes, and that database is public. For example, if an organisation is tendering for business they have to, as a matter of course, now disclose their health and safety record, and if a tenderer wanted to check, if a contracting business wanted to check, they could see the database to find out if that business has been prosecuted in the past.

Q659 Iain McKenzie: Just a quick line. The relationship between fine and compensation, is there a-

Elena Fry: Direct correlation?

Iain McKenzie: Yes.

Elena Fry: No, there is not. They are calculated in completely different ways. A fine after a criminal prosecution tends to be calculated with reference to the gravity of the offence, the aggravating and mitigating factors, the turnover of the company, the profit of the company, their ability to pay, that sort of thing. Whereas in civil compensation claims, there are very defined heads of damage that will be compensated according to the law that has built up over hundreds of years, basically, and the courts set the parameters for how you should go about compensating a particular head of claim. That tends to be paid by an insurance company in 99% of cases, except businesses that might carry a high excess on their policy or might be selfinsured, whereas a fine following prosecution cannot be paid by an insurance company. It has to come out of the business.

Gordon Dalyell: That just brings up the question of businesses that are not insured and, in answer to your question, Mr Reid, about what could be done, one aspect that APIL would urge the Committee to consider is the establishment of an Employers’ Liability Insurance Bureau. I don’t know how much experience you have of the MIB, the Motor Insurers’ Bureau, but it would really act as a fund of last resort to compensate those victims and relatives of people who have been killed in accidents where employers do not have insurance. That is a matter that is unfortunately all too common in both our experiences. The starting point is that every employer is bound to have insurance in terms of the Employers’ Liability (Compulsory Insurance) Act. Unfortunately, not all do and generally we find that those companies that have insurance tend to take health and safety more seriously. The converse is true whereby firms that do not take out insurance tend to be the ones that cut corners as far as health and safety is concerned.

Q660 Mr Reid: Do the police or any other organisation make any effort to identify companies operating without insurance before the accident happens rather than after the accident?

Gordon Dalyell: The ELTO, which is the Employers’ Liability Tracing Office, has been set up but it is not compulsory and it does not really have the teeth that would really be required in this area. The establishment of the bureau, which would be funded through the insurance industry, would give them an incentive and a motivation to ensure that they are insured, were paying their premiums and would have many beneficial effects. You could also look at and suggestions have been made in the past that at the same time as the company lodges its annual accounts it could perhaps be obliged to lodge a certificate of insurance both in relation to employers’ liability but perhaps also in relation to public liability. That would be a fairly easy way of checking whether companies were complying with their obligations.

Q661 Chair: But surely if somebody has not taken out insurance they are effectively selfinsuring and, therefore, the company itself is liable?

Gordon Dalyell: Well, they might be, but the company might have no assets.

Chair: Well, that is just what I wanted to clarify.

Gordon Dalyell: Yes.

Q662 Chair: So there are cases where firms have been found to have insufficient assets to meet the damages against them?

Gordon Dalyell: Indeed, or the company may dissolve. We have come across situations where an accident happens, there is no insurance in place, and the company is dissolved because the person running the company knows that a claim is on its way. He dissolves the company and thereby escapes his liability, or his company’s liability, to the injured person.

Patrick McGuire: It is for that reason, you see, that by Act of Parliament everyone must have employers’ liability insurance. You do not actively have the option to selfinsure. By law, you must have employers’ liability insurance. The reason why that is the case is because Westminster back in the 1960s said this is just too serious an issue. That is why Gordon makes the point that it is entirely analogous with road traffic motor insurance, because Westminster also said that if you have a car you must have road insurance. If you do not, you are committing a criminal offence. That is the position in relation to driving. It is exactly the same in relation to employers’ liability. Westminster has said this is too important, you must have insurance. What is missing is, in relation to this area with road traffic offences, they have gone one step further and created this thing called the Motor Insurers’ Bureau whereby every motor insurer pays money into a pot, which will be a fund of last resort in the event of somebody being injured.

Q663 Chair: I can see instantly arguments of bureaucracy and everything else being argued against that, surely, the establishment of such a structure.

Gordon Dalyell: The MIB is a good example.

Chair: I was just going to say it would be much easier just to say that at the same time as anybody lodges their accounts they have to produce evidence of being insured.

Gordon Dalyell: People won’t do that, and also there is a question of enforcement. We have figures-there is a letter from the Crown Office from 2009-that was a request as to how many prosecutions there had been of companies for failing to have compulsory insurance in place between 2000 and 2009. In that nineyear period, only two companies had been prosecuted. There were two convictions because these are fairly straightforward offences: you have it or you don’t.

Q664 Chair: I can understand that. It is really cycling without lights, isn’t it? There is only an offence when you are caught in a sense, isn’t it?

Gordon Dalyell: Yes. Indeed. That I think again comes down to a question of resource, but if there were an obligation on a company to lodge such a document it would be relatively straightforward for the HSE or the Crown or whoever to check and see which companies were complying with their obligations. Again, it comes down to behaviour because generally those companies that do not bother to take out insurance are the ones that probably are taking the shortcuts in their health and safety practices. It would allow perhaps the HSE to target their resources accordingly.

Patrick McGuire: Again for the bureaucracy point, with driving there are two ways in which people should get caught and it should be easy to force them to get insurance. There is the database, of course, that has been set up. It is basically that, a database, but it works fairly well. Then, separately there is the need for the annual road tax disc, where you cannot get that unless you have insurance. Despite both of those checks and balances, there is a huge number of cars out there that are not insured, and that is exactly why the MIB, the Motor Insurers’ Bureau, exists.

Q665 Chair: Yes, but those who are not insured are generally not taxed either.

Gordon Dalyell: No.

Patrick McGuire: That is right.

Q666 Chair: There is not an equivalent in the sense that a company can operate without registering really, is there?

Patrick McGuire: Well, sole traders.

Q667 Chair: The difficulty about this is if we propose the creation of an entirely new structure, I can see 95 different reasons why we should not do it. It would be delayed and nothing will happen. Whereas on the other hand, if we can identify something that is relatively straightforward, such as having to produce evidence at the same time as you do your registration, then you are almost bound to get 100% prosecution success in those circumstances.

Gordon Dalyell: I suppose the difficulty is that for those victims and their families who have suffered often serious injury, or a fatal injury, then there is no fund there to give them the compensation that they deserve.

Chair: I understand that, yes.

Gordon Dalyell: That is a matter that has been addressed actually in a number of parliamentary reports over the past decade. I think there was a report or a consultation document issued in February last year before the election by Yvette Cooper when she was the appropriate Minister, and that is just sitting there.

Q668 Chair: What has happened as a result?

Gordon Dalyell: It is just sitting there.

Q669 Chair: Nothing at all?

Gordon Dalyell: Not a lot.

Q670 Chair: Which is my reservation about us making a recommendation that is not going to go anywhere. It is not a reason not to make it, but I am looking as to whether or not there is something much simpler.

Gordon Dalyell: We are looking at behaviour, though, and I think that it provides an incentive for the insurance industry to help them persuade their insured to comply with their legal obligations. The starting point is that it is a legal obligation to have insurance.

Patrick McGuire: I would certainly not discourage you, however, from recommending a system whereby in filing tax returns or whatever it may be, whether they are sole traders, whether they are partnerships, whether they are companies, or no matter what format they are, they must produce an extant policy of EL insurance. I would certainly not discourage you from going down that road. I agree with everything Gordon said but I would not discourage you taking the view that at least this is a step in the right direction.

Q671 Chair: You often defend the guilty. In terms of how we should tackle this, you see the merits in having some system of registering?

Elena Fry: I can see the merits for a number of reasons. I think it certainly makes it a lot easier to ensure compliance with insurance. It is not necessarily going to ensure compliance with health and safety obligations. What I would say as a general rule is that most insurers and most insurance brokers will often work with their insureds or their policyholders to try and effect compliance because at the end of the day that reduces the amount of money that is going out of the door by all concerned. Often you will have a risk analysis undertaken at the inception of a policy and ways of driving down the financial burden of a failure to comply with health and safety obligations as part and parcel of that process. It will certainly solve the problem of identifying insurers who have to pay compensation claims, but it is not necessarily going to solve the behavioural issue that Gordon is talking about, about making sure people comply with health and safety obligations.

Gordon Dalyell: What I found interesting in Professor Löfstedt’s report was that he identified a correlation between having to pay insurance premiums and the impact of health and safety regulation on the number of accidents within the workplace. I think that that report is worth looking at in some detail and may involve some further investigation by the Committee, but I think there is a clear link between the stick, if you like, of additional premiums or insurance obligations and a reduction in the number of accidents in the workplace.

Elena Fry: I think that is probably fair comment, but it is the exception rather than the rule. By far and away the vast majority of organisations and businesses carry insurance.

Q672 Chair: That is right, but there will be a disproportionately high accident rate, I would have thought, among those who are, as it were, rascals and chancers that avoid paying insurance, because of the whole question of attitudes. It is an issue about how we scoop that up.

I think we have just about exhausted most of the issues, but do you have any other observations about the relationship with the HSE, the Crown Office and any other organisations that you want to draw to our attention? We have covered most of that-we have our instructions about what questions to ask. At the end, we get to the stage where we give you the opportunity to give us answers to questions that we have not asked and that if we had known our place properly we would have, so that gives you the opportunity to add things. Anything about the relationships between the organisations that you want to throw in?

Elena Fry: I will pick up on the Löfstedt review that Gordon has mentioned because one of the interesting things that comes out of the review is the fact that HSE are now being suggested that they should be charged with directing enforcement of local authority inspections. I think that is a very welcome recommendation because it all comes down to focusing proactive inspection to areas where there is greatest risk. To pick back up on Gordon’s point and the rascals and so on that you have talked about, Mr Davidson, if some targeting of resource can be put on to the people that really need that proactive inspection most in a time when we are challenged by resources and budgets and so on at the moment, then that can only be a good thing if all of these agencies are working together and HSE and local authorities are working together.

Q673 Chair: You two would agree with that?

Gordon Dalyell: Yes.

Patrick McGuire: I would.

Q674 Chair: You have not agreed on all that much, but I think it is worth now building on a consensus where we have one. Any other observations?

Elena Fry: No, none I would like to make.

Patrick McGuire: I think we have covered everything.

Gordon Dalyell: I think we have.

Chair: Right. I think there were a couple of other things. Graeme, the reduction of regulation point.

Q675 Graeme Morrice: On the Löfstedt review, the Government said they want to reduce regulation in health and safety to help businesses. Do you think there is a case to reduce regulation? Clearly, there may be a case for simplification, but what is your view on the notion of reducing regulation to assist businesses? Do you think the levels are about right currently?

Patrick McGuire: I personally think it is madness, and we would never encourage that. I am also interested to know how they propose doing that given that the majority of the regulation comes from Europe. As long as we remain members of Europe that kind of format can be done legally. That is where I stand on that quite firmly.

Gordon Dalyell: I would endorse that and I also would remind the Committee that actually the primary purpose of the European directives is to ensure health and safety within the workplace. As a by-product it allows Patrick and myself to take claims on behalf of people, but actually the principal purpose is to ensure that activity within a workplace is as safe as possible.

Q676 Chair: You don’t think it is disproportionate?

Gordon Dalyell: No. I think the regulations at the moment are about right. As Graeme says, there may well be a case for simplification and certainly consolidation perhaps, and we have seen one or two examples of that in the past few years, but generally the regulations that apply to most workplaces are sensible and entirely what is required.

Q677 Chair: So you don’t think that we would deal with heavy gold plating on occasions? You don’t think the transposition into UK law has been gold-plating?

Patrick McGuire: No.

Chair: Fine. Nods unfortunately do not get recorded. I understand you are lawyers and do not necessarily want to commit yourselves to anything, but I think in these circumstances since we are taking evidence it is actually helpful to have your view because this view has been put to us.

Patrick McGuire: I would disagree with that. I think the regulations are as they ought to be. I don’t actually agree as a matter of principle that they are particularly difficult or complex anyway. I think there is a great myth around the health and safety legislation. I have spoken to many groupings, including many groupings of employers, that have made the same point. The six pack, as it is known, the six pieces of legislation brought in in 1992, properly viewed-you will all remember the great Haynes manuals for cars back in the 1970s-are written in a fairly clear and lucid way: they are the Haynes manual for employers for health and safety. Read them, and they tell you quite clearly what you need to do, and it is pretty easy as to what one needs to do in the circumstances if you read them properly. Do not ask your employees to lift something that is heavy. Do maintain your work equipment. It is easy stuff. Just read them and follow them.

Q678 Chair: You had a Haynes manual-you were lucky. We were too poor to have a Haynes manual, let alone anything else.

Graeme Morrice: Too poor to have cars.

Chair: Exactly, exactly. I think we have covered literally everything then. Nothing else that you want to raise with us at all? Well, look, if there are observations that you want to make subsequently, upon reflection you go out of here and say, "Oh goodness me, I wish I had raised such and such," by all means let us know. We are quite keen to try and progress this as soon as possible. We are seeing a number of what are probably your clients, or in your case your adversaries, this afternoon in terms of the unions. Other unions will be getting in touch with us about this. Can I thank you very much for coming along and I hope you found this helpful.

Gordon Dalyell: Thank you.

Elena Fry: Thank you.

Patrick McGuire: Thank you.

Examination of Witnesses

Witnesses: Debbie Hutchings, Unite the Union, Harry Frew, Regional Secretary, Union of Construction, Allied Trades and Technicians, and Jake Malloy, Regional Organiser, National Union of Rail, Maritime and Transport Workers, gave evidence.

Q679 Chair: Welcome to this meeting of the Scottish Affairs Select Committee, where we are investigating matters relating to health and safety in Scotland? Could I first of all make a declaration of interest, and that is that I am a member of Unite and that I have in the past received money and my constituency has received money for my election campaigns from UCATT, from the RMT, from the GMB and from Unite, and I understand some of my colleagues similarly want to make a declaration.

Graeme Morrice: Yes, Chair, could I declare the fact that I too am a Member of Unite the Union?

Iain McKenzie: Equally, I would declare I am a member of Unite the Union.

Lindsay Roy: I am in the GMB and I have had some contributions towards election programmes.

Chair: You can stay; the rest of you leave. Can I say that the donations have never actually been enough? [Interruption.]

Q680 Chair: But I won, that is true. Hello and welcome. Could I ask you first of all to introduce yourselves for the record and clarify which organisation you are representing?

Debbie Hutchings: Debbie Hutchings, Unite the Union.

Jake Malloy: Jake Malloy from RMT.

Harry Frew: Harry Frew, Scottish Secretary of UCATT.

Q681 Chair: I wonder if we could start off just by asking you to explain how you see your role in assisting raising standards in health and safety throughout the area of industry that you are involved in, working with employers and employees and, in particular, working with those who might not see health and safety as being particularly important. Now, who would like to start? I think they always want to force you to speak first, Debbie.

Debbie Hutchings: I don’t mind on that one. I have written notes anyway. Unite Scotland represents approximately 150,000 members employed across all sectors of the economy. There are approximately 1,500 safety reps in Scotland and, along with other trade unions, we are constantly striving to improve standards of health and safety for members and workers generally. We offer advice and guidance to reps and members, a full reps training programme accessible in every region. We prepare publications and ebulletins, hold regional safety conferences, and the union is represented on many industrial advisory bodies across the different sectors. Our legal representation services cover a range of issues both inside and outside of the workplace. We help with injury claims, employment matters and many other legal issues. We work closely with our legal partners Thompsons and McDougalls and campaign alongside social justice advocates like Clydeside Action on Asbestos Group and Scottish Hazards to facilitate legislative reform.

Jake Malloy: I specialise in the offshore energy sector, oil and gas and renewables now. In that sector specifically we participate in various health and safety programmes, committees, tripartite organisations such as the Offshore Industry Advisory Committee made up of the Health and Safety Executive, the employers and the trade unions. On top of that we similarly provide training specifically to members and all of our safety representatives across the offshore energy sector, which includes catering, engineering, drilling and diving support services. On top of that, RMT has over 10,000 members in Scotland in the rail sector and in the ferry sector and they similarly have programmes in place and machinery to provide similar services.

Harry Frew: Harry Frew from UCATT construction trade union, probably the industry which has one of the highest number of fatalities through the UK and in Scotland. We have been involved in a number of initiatives, one being to look at Scotland differently from the rest of the UK, because per thousand people living here, working here, Scotland was seen as one of the highest areas proportionally in terms of the amount of people who were dying and lost their lives through things like asbestosis and so on. The findings of that inquiry that took place-it was Caledonian University who did it-was that there was no real answer as to why Scotland is worse off than the rest. Some of the comments that came at that particular time were Scottish workers must be too macho and maybe that is the reason why they are being killed. It is a silly statement but that was the kind of responses that we were getting from some prominent people in construction.

Up until now we have managed to publish three documents, one being The Hidden Killer, which is basically on asbestos, the Donaghy report and the union’s findings on the outcome of that, and issues on directors’ duties and responsibilities. We have been proactive in terms of health and safety in Scotland. Like other unions we do provide training for safety reps and so on. One of the things that we have argued is that the safety reps have a role to play in health and safety. We have campaigned for roving safety representatives within the workplace to try and cover some of the problems that the Health and Safety Executive are having just now in terms of budget constraints and so on, but that is obviously falling on deaf ears and there does not seem to be a move to move in that direction. We probably train more people in terms of health and safety training per the numbers between our unions and other unions, but we think that health and safety training is one of the important things in the construction industry bearing in mind the number of fatalities and deaths that we have.

Just looking at Scotland, since October there have been nine fatalities so far. Three of them have been in construction, two in agriculture, one in the motor industry, one member of the public, one in the services and one in the oil industry. That is running on a par with the normal type of numbers that we have in Scotland over the past 10 years and we do not see it improving-we think things are going to get worse. You would take that against a backdrop where the construction industry has not been as buoyant as it should be and there are probably less people working in it, and yet we are still hitting that same number of fatalities. We are very conscious of health and safety and some of the things we think that need to be done to make it stricter, tighter. Obviously, we will continue the campaigning but with the current Government that we have we feel that there is a difficulty in convincing them for stricter health and safety when you see some of the comments and the myths that are being portrayed.

Q682 Chair: Fine, okay. Can I just make it clear that I think we are wanting to try and identify recommendations that we can make that might make the situation better, and if you give us your evidence in that context. I think we are conscious, and have been for a little while because of other examples of evidence that we have had, that there are structures already in place that in a lot of cases work quite well. They could always improve, but I think we are conscious as well that there are areas of the economy where really health and safety is not paid all that much attention to. I think what I would quite like now just to move on to is if you could help us a little bit in trying to tell us where there are areas of the economy in which you are involved where there is the most difficulty in getting both employers and employees to have a health and safety culture that is meaningful and constructive and participative, and whether or not there are any solutions you can identify that we could recommend that these things could be pursued? Now, Jake, you are nodding your head the most vigorously so we will let you go first. That you will teach you to show facial expressions.

Jake Malloy: Well, I am nodding because I had the opportunity to read some of the evidence given previously, specifically by Robert Paterson from Oil & Gas UK. Just flicking through some of the evidence there, our focus as an organisation is to empower, educate and assist workers to essentially take control and play a fundamental part in day to day health and safety issues. As Robert referred to, Piper Alpha was the turning point for us and part of Lord Cullen’s recommendations focused on this issue of workforce involvement, workforce empowerment, as the key to improving health and safety. We are almost 25 years on since Piper Alpha and we are still talking about workforce involvement.

I took notes from the evidence given where Oil & Gas UK were questioned about workforce input. I would suggest it is limited and tends to focus primarily on behavioural safety: make sure you have your gloves on, you don’t have your hands in your pockets and you hold the handrail walking up and down stairs. As a colleague from Unite put it just recently, the safety reps today tend to focus more on the holes in the carpet than they do on the holes in the pipelines, which is why we are still having as many gas leaks today as we have had over the last 20 years.

I noticed also that evidence was given about the survey that was conducted by a group that I sit on, the Workforce Involvement Group, and the Offshore Industry Advisory Committee. Oil & Gas UK referred to there being 89% of people surveyed feeling involved. I would point to the fact that feeling involved and being involved are two completely different beasts. Attending a safety meeting every Sunday on an offshore installation is involved, but it does not necessarily interpret as involvement in the way that we would envisage it. I think that is the key. To suggest workers are involved-I would counter by saying that they are involved to the extent that management allow them to be involved. That is an area that we are focusing on, because in that same survey, digging into the survey, you will find that in actual fact less than 30% of those surveyed have ever had any input into what is termed the safety case. That is the documentation that is considered by the Health and Safety Executive to allow these operators to run their installations safely. Less than 30% have had any input into that documentation.

Oil & Gas UK also referred to the Health and Safety Executive projects, specifically key programme 3 and key programme 4 dealing with installation integrity and ageing infrastructure. Installation integrity is where it’s at. When I say that, I am not just talking about the stairs rusting, I am talking about the corrosion of pipework and the gas leaks. Every significant gas leak we have has the potential for multiple fatalities. We have had something in the region of 63 in the last year, and I would refer to the fact that Piper Alpha started with a significant gas leak. That is the scale that we are talking about. To eliminate those gas leaks, or certainly to reduce them, and to allow the industry to meet their targets, we feel it is absolutely essential that safety representatives in this industry are better trained and better empowered, especially in an environment where inspection is actually reducing. We are focusing on that and we have won some gains to some extent by securing, only in the last two weeks, improved safety training for health and safety representatives. Until we got the nod on this developmental training dealing with major accident hazards, dealing with risk assessment, dealing with inspection and investigation, safety representatives by and large had only five days’ basic training in the offshore industry. Five days in which to learn enough to work in a major hazard industry. I would suggest that this is falling well short of the mark.

I think that is also epitomised with the tragic events of last year on Macondo in the Gulf of Mexico. Eleven workers died there and that seems to have been lost because of the environmental issues. The reality is those 11 guys knew, they knew for probably as long as two hours that that problem was about to develop into something way out of their control. Not only that, they knew for weeks and months before that that all of their safety systems were failing, that some alarms had been inhibited, some systems simply did not work, and they had no means of challenging that, contesting it or stopping it happening. That is the nature of the beast in the States. Here the UK is different but it is still not good enough, as demonstrated by the fact we have had 63 gas leaks in the last year.

We see safety reps, the empowerment of and the education of, as absolutely key to improving overall safety performance. We also see it, interestingly, as key to the security of a resource because if these installations are allowed to continue to deteriorate at the rate they are-and I would point to the improvement notices issued this year alone on ageing infrastructure and corrosion and erosion-then this country stands to lose the potential to exploit the oil and gas that is left. Because new oil companies, smaller oil companies, will be reluctant to come in and buy up some of the quite sadly dilapidated installations that are out there right now and we could, potentially at least, see oil and gas left in the ground, therefore making us more reliant on imports. I think it is crucial for the country that these safety reps are given the training and the education, the knowledge and the empowerment to ensure that the oil companies are meeting performance standards, are meeting the obligations set under this regulatory regime for their own safety, for the safety of their colleagues and for the safety and security of supply of oil and gas to this country.

There was one other point that I would just like to touch on and it was referenced by Oil & Gas UK. It is the proposal by the European Commission to introduce new regulation into the UK sector. Oil & Gas UK have indicated that they are very concerned by this as it could reduce or in some way negate the regulation that we have here in the UK. I will come back to that, but I would say that the regulation in itself is good because what it does is introduce across Europe the requirement for an independent third party verification, ensuring that performance standards can be met. It brings with it the standardisation of data so that we have all of Europe reporting in the same way, and it provides for a better way of measuring against one another. Just to explain, the UK measures on population; the rest of Europe tends to measure on hours worked. There would be greater transparency, which I think is-

Q683 Chair: I am not sure we want to get into the detail of individual proposals, because we are going to have to take a broad sweep.

Jake Malloy: The reason I mention this is because the potential does exist that it could eliminate workforce involvement. It could reduce the ability of workers to influence things. That is why I make the point. The other worrying aspect for RMT is that when you have a regulation you end up with what we call the EU Common Fisheries Policy. We could have an EU Common Energy Policy and workers are two or three times removed then. I would rather the EU move with a directive and allowed us to have the regulation we have in place at this time, which is improving and, as I have just said, it is providing now more training for safety reps and greater power and knowledge.

Q684 Lindsay Roy: I had the privilege last month of visiting a platform in the North Sea. Are there any companies where practice is exemplary or leading edge practice and do they share it with other people?

Jake Malloy: Slowly but surely, yes. There has been a reluctance on the part of the industry to share. That is why I say greater transparency would be welcome. The tendency has always been, "We will do it our way, we don’t need to be told," but with the creation of these workgroups that we are involved with we are learning. I would say BG, British Gas, currently are one of the top performers, and Chevron and probably Total.

Q685 Lindsay Roy: So Total-

Jake Malloy: Yes, they are engaging with the workforce to a greater extent than most of the others.

Q686 Lindsay Roy: That was why I raised it. In fact, I met with workers’ representatives and they were very strong on the degree of engagement and empowerment there was on that particular rig.

Jake Malloy: Yes.

Lindsay Roy: But I suspect there is still a reluctance to share that effective practice?

Jake Malloy: There is some reluctance but we are dragging them, slowly but surely kicking them into the 21st century.

Q687 Iain McKenzie: Just on the time and the duration you identified for training of safety reps, five days, you say that you find that inadequate. What would your union recommend is a reasonable timescale for training of safety reps?

Jake Malloy: Well, because it is voluntary we are not pushing for mandatory training but we want to provide a toolkit for safety reps. If a worker wants to get involved the training should be available to them, and that should be in every aspect of health and safety. Currently, as I say, you get a very compressed fiveday two hours on legislation, two hours on regulation, two or three hours on safety case, major accident hazards, incident and accident investigation, presentational skills, and so on. We are now looking to introduce developmental training, which will focus more on the major accident hazards. For example, I went to a safety rep seminar with 106 safety reps in the room and I asked how many had conducted an inspection, which is part of their powers and duties. One safety rep had ever conducted any form of inspection. If you have safety reps going out conducting inspections with the knowledge to do so, then they can go back and report and file reports with management, which pushes management to rectify the problems that they are uncovering. But they cannot even uncover the problems. I could not put a timeframe on it. I would like to say a minimum of two weeks as a starting point, but the provision of developmental training in any area I am not sure how long it is going to take.

Q688 Chair: Maybe we can move on to hear from the others because then there are some general responses that we might want to raise. Which of you wants to?

Debbie Hutchings: I will go. Just to echo Jake’s earlier points about behavioural safety, it is not just in the offshore industry we are seeing that. We are getting a lot of reps coming to us now that behavioural safety programmes are being put into their workplaces and they are having less involvement because they are not actually always the safety champions with that kind of programme. It is pushing their remit away from safety where they were the ones that were consulted-

Q689 Chair: Sorry, I don’t quite grasp this point.

Debbie Hutchings: The behavioural safety programmes-we are seeing them running and it is all pushed down on to the employee. Often what is happening is the consultation with the safety reps is not happening because the safety structure and the safety programme is changing from one of looking at the systems and the root causes of problems to actually looking at, are people wearing their gloves, are they wearing their safety goggles. A lot of resources are being put on to behavioural safety rather than looking at the systems and the management of safety. So, just to echo Jake’s sentiments there.

Q690 Chair: Sorry, could I just clarify, why is that a problem?

Debbie Hutchings: That is a problem because you are looking at behaviours, not really machinery or system problems. You are focusing just on whether somebody is wearing their gloves rather than what is the chemical being used and should something be done about that in the control hierarchy.

Q691 Chair: Sorry, just to clarify that, presumably then whether or not behavioural safety is more important will depend upon whether or not most of the accidents have been caused by poor behaviour?

Debbie Hutchings: I think there is a kind of a myth that behaviour causes a lot of accidents and the advocates of behavioural safety will tell you that 90% of accidents are caused by behaviour, whereas if you look at the HSE or the TUC or the unions’ figures, we would turn round and say 85% to 90% of accidents are caused by failures in the management system of health and safety. It goes far back before the end user. Our reps are now coming to us saying that they are not as involved because they are not actually having committee meetings, they are not having consultation on what we would call the true problems of health and safety, but more attention and focus is being put on to lower down the chain to the individuals, to the workers.

Also, we are receiving constant phone calls most of the time from our reps that risk assessments are not being carried out, inspections after accidents, investigations are not being carried out. There is an underreporting of incidents and some of those would turn out to be RIDDOR reportable. A lot of the other things that Jake has spoken about before, the facility time, that reps are not actually getting facility time to carry out inspections. We have done similar straw polls with conferences ourselves and asked reps who carries out inspections, who is involved with risk assessments, and we get very few people that put their hands up, although we know most of them have been through a training programme. Our training programme at present is a threeweek programme, which is usually spread out over the course of two years because reps cannot get the facility time to go on. We are addressing that problem and probably condensing it to two weeks so that we can try and get the reps involved within the year. But if they are not being given the time to carry out their duties it is very difficult for them to get involved with inspections and risk assessment.

Another area here, the Safety Reps and Safety Committees Regulations we believe is a great piece of law and it gives employees and their representatives the scope to be the driving force behind health and safety. But we do not have any evidence or we have no knowledge, rather, of that piece of regulation being enforced, that reps are given time off, that they can carry out inspections, that they are consulted on all matters of health and safety. Very many reps will come to us and say they do not have a functioning safety committee, so that is an area there.

Also, going back to the areas of the economy, as Unite the Union we do have members in construction but also within agriculture and forestry. I know Harry mentioned it earlier, but we are of the belief that roving safety reps, if the Safety Reps and Safety Committees Regulations were broadened or extended to incorporate roving safety reps, a lot of the areas where we have maybe only a few people working could be covered. Maybe there is some discussion that needs to take place over the implementation of roving safety reps. There have been projects in the past-and I know all of the unions here have been involved with those-that were quite successful, but that has gone off the table a little bit.

Q692 Chair: Let me come back to the question of roving safety reps, but I will turn to Harry.

Harry Frew: We have tried on a number of occasions. One in particular was in a partnership with an organisation called the Federation of Master Builders where we had three full-time safety reps who were funded by the HSE. We are going back maybe about five or six years ago. We put them on the road and the deal was that through this federation, the Federation of Master Builders, they would contact their members and tell them that there was safety awareness advisers going to be coming round to see them and they asked them if they would be interested in getting some advice. All the companies who contacted us, and I think in the first trawl there was 100 companies, and the safety advisers went and visited them. Initially it was a meeting to meet the director and discuss health and safety in the workplace; a second meeting to look at how the company could get actively involved and how to get the workers involved in it and then a third meeting just to refresh everything they had done. That was very successful.

The first thing they realised was that when they spoke to companies about a safety policy, companies didn’t know what a safety policy was. If they did have one it was probably out of date and had to be revamped and the safety advisers were then writing up new policies for them in line with the law. What was quite clear was that the amount of health and safety knowledge that the companies had-these are small companies I’m talking about, not the big multinationals-was first of all that the company directors had a poor understanding of health and safety and the workers even less. So there was an on-going dialogue between the directors and the workers who worked for them. As they went through, these visits made people more aware. They completed that 100 companies and were given another 100 companies so they went and tackled them and over the period of about a year and a half, they completed a couple of hundred companies and raised the profile of health and safety. Now, I think that that is the type of thing that we need in all industries to make people aware of it. If you remember 2002, the Construction Health and Safety Summit, I think it was John Prescott who was involved in it, and he at that particular time said that the amount of fatalities that we have in the industry is unacceptable and we need companies to be more hands-on and deal with these issues. He was saying to them, "If you don’t improve then we will bring in mandatory legislation to deal with it," and it never happened. Companies said they would be more active in dealing with health and safety but as you can see, what we are getting now in the Health and Safety Executive is less inspections, less prosecutions. We believe that there should be some kind of mandatory training and I think it should tie itself in between the operatives working in the various industries along with the management, and both of them trained together. Otherwise what you get is, like the other organisations here, when they train up a safety rep, that safety rep then has a further barrier trying to carry out his duties as a safety rep on a particular job or workplace because the employer has taken a dim view of his workload and what he is reporting back. We think that there needs to be a stricter control of safety responsibilities within workplaces and it has to be a joint effort by the trade unions and management. Also to try and prevent some of the things that are happening in industry there should be proper occupational health schemes introduced within workplaces of a certain size.

We believe that these steps, along with the roving safety rep, would certainly make things better in our industry. I sit on a couple of groups, FAS is a partnership with Health and Safety in Scotland and Site Safe Scotland. FAS is the strategy group which will look at trying to better health and safety in Scotland and Site Safe Scotland is similar, but it is more hands-on for the construction industry. You get some of the reports that come back on that, some of the stories are quite horrific, but it goes on in our industry. I remember not that long ago a company coming to us and saying that they would like to appoint 15 safety reps, which we were quite surprised by, that a company was coming with that attitude. So we endeavoured to get safety reps on the sites and I happened to say to them, "It’s great that the company is taking this attitude" and they said, "It’s not because we want health and safety reps. It’s because our insurance is going to be cheaper". So there was a reason for it and it wasn’t just to make health and safety better; the reason was it was going to save them money in terms of their liability insurance, and so on. So there has to be more working with the companies and if the trade unions can’t get that engagement with employers and hoping they will take the responsibility jointly, then we have difficulty dealing with health and safety in the workplace if workplace reps are going to be restricted in their duties.

Q693 Lindsay Roy: The STUC presents an award for outstanding performance, to what extent is that practice shared? What involvement do you have with that, with the companies like Tullis Russell this year? I can’t remember who it was the year before.

Debbie Hutchings: Spirit Aerosystems last year.

Harry Frew: I am one of the judges on it. It’s a great thing to do, award someone for achieving a certain level of health and safety and some of them are very innovative. The one that struck me was an award for workers who worked in the telecommunications industry and they were removing the old exchanges, they were removing all the wiring from them and when they went in to remove it they realised that the content of the wiring had cyanide in it and when they were pulling all this out, people were taken ill. So then what they did was analyse it, realise what the problems were, bring in a safe method of working to remove it and the individual won the award for that. So there are lots of good ideas out there if people are given the opportunity.

Chair: Yes, this is a prestigious award and they always try and get somebody extremely well known and famous to present it, don’t they? I think it was me last year.

Debbie Hutchings: Can I add to that, because I work with both Spirit and Tullis? There is something that we did try to do with Spirit Aerosystems, who I have worked with for quite a few years-before that they were BAE Systems-and it has taken about 10 years for those guys to get to that standard. What we did, once they had won the STUC award, with discussion with the management and the reps and ourselves and the union, we set them up as an exemplar company. With the STUC what we have been trying to do is do exchange visits with themselves and other organisations to see how health and safety best works. It was a result of the Tullis Russell visit to Spirit that they put the methods in place and won the following year’s award.

Q694 Chair: It is a bit like the question of youth clubs serving good boys and girls. Those that are interested in improving take advantage of these sorts of provisions. The problem is rascals and chancers and people that are trying to cut corners.

Could I just come back; the first point I want to raise is the question that you mentioned about insurance. We have already discussed insurance with the group that we had in before you. They were raising issues relating to some firms not being insured. Are there any observations that you have either now or perhaps later on about how the insurance industry wanting to improve standards could be used as a method of driving up the provision of health and safety advice or systems and so on? Is that something that has occurred to yourselves as well? Certainly they were recounting to us pretty much the same point as you were making about people getting reductions in their insurance premiums. They were also raising another issue; about some who were not paying for insurance even though it is a legal necessity? But if you don’t have any response to that, then maybe you could come back to us later on if you think of anything.

The other thing is about the role of roving safety reps. I am not clear about who these would be, who would fund them and what their responsibilities would be, in the sense of whether or not they would be employed by one firm or by the union but would have some right of access to sites or plants and then be able to blow whistles. Lots of those things that you mentioned as being things that they could do seem to me to be the responsibility of the HSE; that you are only suggesting this because HSE are not doing their job properly. Or is there a dimension there that I am missing?

Harry Frew: I think it would be fair to say that the roving safety reps are not something new. It is something that trade unions have advocated for a number of years. The problem now is that the budget constraints of HSE, now having their budget cut of 35%, make it more difficult for them to carry out inspections to the level that we would like to see. Probably our view before the 35% cut was that there were still not enough inspections. If you analyse some of the stuff that would be sent in, one of the comments that was made on it is that you were likely to see a health and safety inspector every 14 years on some of the construction sites. So if you look at it now and what the HSE have got to do, they are only going to react to a situation as it happens on whatever site it may be.

Q695 Chair: So they are not proactive?

Harry Frew: They are not proactive.

Q696 Chair: So what would be the role of the safety reps? To substitute for HSE?

Harry Frew: As an example, we could have a safety rep in a construction company who may be a safety rep for that particular site. That company may have 15 sites. Then to rove within that company, carrying out duties as a safety rep, would be a start. I wouldn’t advocate that he would jump from one company to another, he would be with a company and the company should give him the appropriate time that a safety rep would be entitled to.

Q697 Chair: Is this not something that ought to be negotiated between yourselves, or whichever was the relevant union, and the company? I am always looking for things that we ought to be saying, but is that not something that you ought to be resolving yourselves?

Harry Frew: I think if you take the example that probably you get from everyone else, if there is no requirement to do something then it will not happen. That is the industry we work in. All industries are the same. If there is something there that says, "You will provide a person, a safety rep" or whoever it would be, then the onus then is going to come back on the trade union side or a workplace that is non-unionised could provide someone who is competent to the level that they could go out and carry out proper inspections. Some companies may have health and safety officers but what you tend to find is that they are employed by the company; their attitude to health and safety may not be the same as someone who is not employed by the company. You have to create that balance.

Q698 Chair: I just wanted to be clear. The term "roving" implies to me that there is a meander as it were, or stravaig, so to speak. But you are saying that they would specifically be of a company. So in those circumstances, who would cover non-unionised sites?

Jake Malloy: They have this very system in Norway. It has been there for 30 years; full time safety delegates.

Q699 Chair: Who are funded by whom?

Jake Malloy: They are employed by the operator. If you take the rail industry, a contractualised structure under one client, the client has to have a full-time safety representative. If you go offshore, you have Shell platforms across the North Sea, the workforce from their body of safety reps elect a full-time safety rep. That has happened in Norway for 30 years, as I say. Every operator in the offshore sector has a full-time safety rep. He is involved in every aspect of the business from the boardroom to the shop floor. He roves round, meets with the workers, gathers up information, acts as a conduit to the board, and files reports to the board. What it does is it acts as a great deterrent to bad practice.

Q700 Chair: So he is appointed by whom?

Jake Malloy: He is elected by the workforce.

Q701 Chair: It is easy on a site then, or a rig, where you get a finite workforce. Part of what I thought you were saying was that he would then be going more widely, covering other sites of the company.

Jake Malloy: Visiting sites or visiting installations, yes.

Q702 Chair: Right. But that then does not cover areas where you do not have that sort of structure, does it?

Harry Frew: There have been issues where the company operating a non-unionised workplace will pick reps or workers’ representatives, or whatever title they give them, and the responsibility will be X, Y, Z and if that responsibility is health and safety then there are provisions there for them to get training. The company would obviously need to pay for that. As it stands now, the unions pay for it.

Debbie Hutchings: Harry said about the non-trade union workers. The concentration of employees regs, where if there is no trade union present, then there should be elected members of the workforce to act as the health and safety representative but again, who trains them? It is down to the employer to train them. This is often where we have the issue that we want trade unions safety reps when you have a site that has some trade union and some non-trade union people on site. We want the safety reps to be involved over and above anybody else because they are actually getting the training, whereas the non-union workplace safety representatives may not be.

Q703 Chair: Presumably there is the possibility of having some degree of external moderation, or judgment, of training, either from the HSE or somebody else. So presumably that can be overcome if the will was there.

Jake Malloy: That is the environment the offshore system works in. There is still right of appointment. Trade unions are recognised, now since 2000, but when the regulations were put in place, SI971, it was the democratic thrust of the workforce. The workforce pick from their peers the individual they think most suitable to take their issues up. It is a model that can be used outwith non-union sites.

Q704 Chair: You are pointing to the mandatory training. The quality of the training, the subjects covered, could be externally moderated to make sure that it reaches the standard?

Jake Malloy: The Health and Safety Executive-for the first time in 20 years of regulating offshore-have just conducted an SI971 inspection programme that found that 80% of operators in the offshore sector were failing to meet the standards set down by the Safety Representatives and Safety Committee Regulations. That is why we generate the debate and secured the developmental training because quite clearly this inspection showed safety reps were not fulfilling the role that they said they could, and that was because of the lack of will on the part of the duty holders, the operators.

Chair: I think there are a number of issues that we want to come back to but in the meantime we will maybe return to the agenda that the staff have told us we have to go through. Iain.

Q705 Iain McKenzie: Moving onto the prosecutions, the preference for the RNT would be for the HSE to be responsible for the prosecutions in Scotland rather than involving the Crown Office prosecution service. Why do you say that and what evidence would you submit to say that this change would improve matters?

Jake Malloy: I have very little that I can actually bring to the table but the anecdotal evidence we have through discussions with Health and Safety Executive inspectors after major incidents have occurred and prosecutions have been supported by the Fiscal’s office, or declined by the Fiscal’s office is that they themselves feel the industry would be better served, the workforce would be better served, the State would be better served, if they were bringing prosecutions because they have the expertise; the knowledge. We had an event earlier this year where an oil company, without mentioning the name, was being prosecuted after two workers were severely injured and the Fiscal’s office opted to abandon the case midway through.

Q706 Chair: That was Maersk?

Jake Malloy: That was Maersk, yes.

Q707 Chair: I think we will name them.

Jake Malloy: Okay. In the circles I am sitting in just now we are not allowed to name the company.

Chair: No, but I am.

Jake Malloy: Thanks for that. That raised a lot of concerns especially given the reporting which occurred on it, because the suggestion by the management witnesses was that these two workers had gone and done a job against procedure, against instruction, against everything that existed from a health and safety perspective. That cannot and does not happen in this industry. It does not happen. Workers do not go out and do a job if they have got an instruction not to do it. It just does not happen. I represent workers on a daily basis, being disciplined for alleged breaches, but no one in the 15 years that I have been involved in this job has ever been disciplined for doing a job that they were instructed not to do. I felt that the Fiscal’s approach was lacking in quality of argument. It leant heavily on the law as opposed to what the reality was. Again, I have seen that previously in fatal accident inquiries in other prosecutions that we have been involved with, particularly the Brent Bravo 2000 where two men were killed and prior to that the Gordon Moffat case where a lad was killed when he was pulled by a 5-ton winch into a 10inch hole. The performance of the Fiscal, with the greatest respect to the Fiscal’s office, in those cases was lacking, to be polite. The Health and Safety Executive inspectors involved with those cases thought exactly the same thing. I think HSE could present a case in a far more comprehensive manner and the threat of the HSE bringing a prosecution, again I believe, would be a far greater deterrent than currently exists through the Fiscal’s office. I hope that answers your question.

Q708 Iain McKenzie: To carry on with a question to you all. What has been the impact of the creation of the Health and Safety Division in the Crown Office in March 2009?

Chair: Hello?

Iain McKenzie: I think that speaks volumes.

Q709 Chair: Would it be fair to say your enthusiasm is less than total?

Jake Malloy: Yes.

Q710 Chair: We are here to take evidence. Can I just come back on one point? Do you think that the HSE would be better and more rigorous in pursuing prosecutions than the Procurator Fiscal Service?

Jake Malloy: Yes, I believe so.

Q711 Chair: What about the other two? Do you support that view?

Harry Frew: I think everyone has a role to play. I think in the first instance the Health and Safety Executive are the first port of call when analysing or looking at an incident that has happened. The problem is that in terms of prosecutions that have been taken forward by the HSE we believe that it could have been much higher, and in a lot of cases there was no prosecution brought forward. Just in learning the ropes here I am seeing that from 2002 to 2007, 13 company directors and senior managers were convicted under section 37 of the Health and Safety at Work Act for construction-related accidents. The figure compares with almost 350 fatalities, fatally injured construction workers, in the same period. When you think of the numbers and look at the convictions, they don’t tie in.

Q712 Chair: Is that a UK-wide figure?

Harry Frew: It is a UK figure, yes.

Q713 Chair: But those cases, then, in England and Wales, would have been prosecuted by the HSE, and I think the point we are exploring just now is whether or not the HSE or the Procurator Fiscal’s department is better to do the prosecutions. Your point is one I think we have heard already and I think we understand, that not enough prosecutions are taking place. But the point that Jake and the RNT have made is that they would rather the HSE did it in Scotland than the Procurator Fiscal’s department did it. The point that we are just seeking for clarification from yourselves on is whether or not you shared that view.

Debbie Hutchings: I think with the experience that they would have with workplace situations in health and safety, there is an argument that, yes, that might be better. But I think also you have to take into account what are the HSE there for? What is their primary role? Also, it is a resource issue that at the moment we want them to do more front-line activity. Okay, if they are going to take the prosecutions on, that might be best placed there but again there needs to be resource for that.

Q714 Iain McKenzie: Would you see a drop in the success rate of prosecutions if the HSE took on solely that role?

Debbie Hutchings: The prosecution role? We really want them to have more of a frontline role initially so that we can see enforcement going up, the number of visits to workplaces going up. I know it was mentioned that construction might see an inspector once every 14 years but the TUC have done some investigation into that and the figure that the TUC-and I know that is UK-wide-they are saying in the general workplace it might be once every 24 years. If we had that kind of more frontline inspection, more proactive work from the HSE, if they had the resources for it, I think that also would be a deterrent.

Q715 Iain McKenzie: I think that maybe it was suggested by Harry that there is a role to play, but have any members of the HSE staff expressed frustration to any of you about the role of the Crown Office in deciding whether or not to prosecute?

Jake Malloy: Yes, regularly but they won’t go public on it. I’d love to write it up but of course they won’t. But that is why we made the point. Again, the Fiscal’s office should be able to provide you with it but I would be interested to see how many cases have been put to the Fiscal’s office with a recommendation for prosecution that have been rejected. That is the frustration I’m getting.

Q716 Iain McKenzie: Do the other two share that view?

Harry Frew: Yes, definitely.

Debbie Hutchings: Yes.

Harry Frew: I think that’s unanimous.

Chair: I think that has the merit of clarity.

Q717 Graeme Morrice: Could I ask Harry this? You said in previous evidence that company directors should have a statutory legal duty in relation to health and safety. Why do you think that?

Harry Frew: It has to be led from someone, and this is why I say that it has to be a joint effort by safety reps and directors and senior managers in the company because the first thing it does is it gives the people who are dealing with it-whether it be the director or whether it be the safety rep-a sense of purpose without fear. As it stands just now, as I have indicated earlier, without that companies may look upon health and safety as more of a nuisance than actually doing some good. If you don’t have the company on board, then it becomes more and more difficult for the individual to carry these stances.

Jake Malloy: Can I comment on that?

Graeme Morrice: Yes, of course you can.

Jake Malloy: For us it is accountability. We have had 63 gas leaks and not one person held to account. If a worker doesn’t put his hand on the rail, he gets disciplined. Accountability should work to the top as well as it works below.

Q718 Graeme Morrice: Indeed. Debbie, presumably you would share that view too?

Debbie Hutchings: Yes, definitely. Directors’ duties; we would also say there should be some legislation there. At the moment there is no legal responsibility through the Health and Safety at Work Act on directors and it goes back to the same argument. Voluntary guidance is good if you are a good director and you want good health and safety you are going to look at those guidelines and abide by those. But if you are not, you are going to ignore them. We would like to see some kind of legal statute put on directors that they have to take health and safety to board level.

Q719 Graeme Morrice: Thank you.

Can I go back to Harry again? Why do you think the number of deaths in construction have led to such a small number of convictions and how does this compare to the other sectors?

Harry Frew: I think the evidence is there to show that the construction industry has probably one of the highest numbers of fatalities, year on year. It’s not a case of you do something in construction, there have been a number of initiatives taken by the HSE where they would tackle certain aspects when they look at fatalities, if it is a fall from heights then they would run a campaign on working at heights to educate employers and workers there is a real risk there. So the HSE are proactive, not just in arriving whenever there has been a fatality, but they are proactive also when they are in working fully in trying to address some of the issues that we find in the industry.

Just going back; in 2007 we produced a document Bringing Justice to the Boardroom and it was argued that there was a need for a legal change to bring in statutory health and safety duties for company directors. Our evidence at that time showed that 44% of organisations that have Health and Safety Directors at board level would show a 25% reduction in the level of related injuries that can be expected on average.

If you have that type of working to try and make things better jointly then your success opportunities are greater.

Q720 Graeme Morrice: In your evidence you made reference to figures between 1998 and 2004. Do you have the figures since 2004 and has the situation improved?

Harry Frew: I think if you take Scotland as a nation, in terms of fatalities I think last year it dropped down to three fatalities. There may have been reasons for that-this is in construction-there are reasons for that. First of all, we indicated that construction industry is not on the same plane it was in 2007, so that may be part of it. But it is on the increase again. This year we are looking at nine fatalities in Scotland, we have three already in construction, and another issue that we raise in our industry is bogus self-employment and what kind of impact does that have. With the nine fatalities in Scotland, four of them are self-employed. So, that tells me there is no training provision there for the self-employed in industry and that increases the opportunity of somebody suffering a severe injury or a fatality because they do not have that training. When you are self-employed you tend to maybe take some more risks, more than somebody who is employed, because it is for you. It is money for you. If you do not get it done you are not going to get paid. So there is an element of that.

Also you hear things like he is a subcontractor to a main contractor. The main contractor has the responsibility for the health and safety starting from the top working down. But to get the job moving on then they are not going to force somebody who is self-employed to make sure that he carries out proper health and safety. He will give it lip service but not be rigorous with it.

Q721 Mr Reid: A quick question for Harry. In your evidence you refer to a Centre for Corporate Accountability report from 2007 that says, "A fine imposed in Scotland is on average less than a third of that in Wales and less than half of that in England". Have you any explanation for why that might be the case?

Harry Frew: I find it very strange as to why in Scotland it should be much lesser. I do not know, maybe we have more sympathetic judges. When you compare it with England and Wales it is remarkable.

Q722 Mr Reid: There is no rational explanation?

Harry Frew: I don’t know what the reason is for it-I don’t have a clue.

Q723 Mr Reid: Has it narrowed at all since 2007? Do you have any information?

Harry Frew: I think it has historically been less.

Q724 Mr Reid: You say that maybe judges are more sympathetic to business. Is that something you have discovered in general in Scotland, not just in this particular field?

Harry Frew: I am not saying that is factual, that is what the case is. But the figures are there to be seen, and that is factual. So you can only make a judgement or an assumption on why that might be.

Q725 Chair: Do either of the two of you have any comments to make on that sort of area of questioning?

Jake Malloy: About the level of fines and prosecution generally? Yes, I think we have missed the boat, frankly. I think we missed the boat when we were looking at corporate manslaughter legislation in that we could have had far more innovative deterrents put in place. I think the threat of losing a company bonus and being struck off the board for several years would be a great deterrent for bad practice on the part of directors rather than limitless fines. We have had limitless fines for years and, as Harry has just indicated, that has not had any major impact on the practices of some of the poorer operators. I think there is still work to be done that could be done.

Q726 Chair: Can I just be clear? Are you saying that there are repeat offenders who have been fined substantially on several occasions?

Jake Malloy: Yes. Again, to give you an example-I have just written a couple of articles for the next publication-what we are seeing in the offshore sector certainly is inspections being carried out on installations and enforcement action, that is in the form of a letter being sent to HSE asking that duty holder to remedy the problem. They are then going back a year or 18 months later to do another inspection and the work is not being done, so they are then serving an improvement notice. That type of reactive coercion is not working and I think if we had a more robust system of prosecution for failures of that nature then it just would not occur because most of the big operating companies-whether it be in the offshore industry or any other industry-the only thing they hold dear is reputation, and having the repeat offender status increasingly is acting as a deterrent because they are unable then to secure investment for new projects and such like.

Q727 Chair: We were checking earlier on just whether or not it is possible to get statistics easily about who had offended and whether or not they were repeat offenders and so on, but we were told that that was available and that therefore that deterrent is there at the moment. Your point is that they are not being prosecuted and taken to court and therefore not appearing on the list.

Jake Malloy: Not only that, the enforcement action that has been taken against them is little more than a notification on an HSE website that an improvement notice has been served. The only way to dig down into what they are doing by way of offence is through freedom of information currently. If there was a compulsion for peer review or greater transparency that too would act as a deterrent.

Q728 Chair: Surely if it is on the website that is transparent?

Jake Malloy: That they have been issued with a notice. The point I am making is that they have been told to rectify the problem, they are not doing it until another inspection is carried out, and it is only when you get to the improvement notice level that you find this operator has been warned, been told, and so on.

Q729 Chair: Any observations?

Debbie Hutchings: Yes, under the publicising of these breaches, I think that is something again that was missed, that it is hard to find and you have to know your way round a website and go and dig for it, but it often does not give you a true reflection. Really just underpinning this, I think we have to remember that the laws that have been broken here are criminal laws and often the seriousness deserved by these laws is not taken and some of the sanctions maybe are not strong enough to be a real deterrent.

Q730 Chair: Let us be clear that none of you are under the impression that the creation of the Health and Safety Division in the Crown office has made much difference to the level of prosecutions or fines?

Debbie Hutchings: Not that I know of.

Chair: Some of these things we just need to be absolutely clear about.

Q731 Lindsay Roy: I think I have been told that the level of under-reporting of non-fatal accidents is about 50%. Indeed the NFUS said it was more than that. HSE have told us around 50%. Do you think the level of under-reporting is higher or lower than that? I suppose more crucially what evidence do you have, because it is difficult to get?

Debbie Hutchings: It probably is very difficult to get and, as I said earlier, we do have constant phone calls from safety reps saying that things are not being reported, and when we look into them and give them advice those things were RIDDOR reportable. Often it is down to education of the management, whether they have a safety officer to advise them, that often they might not know it is RIDDOR reportable. But that is anecdotal evidence and just from reps phoning in. I think the figure of unreportables, I would imagine, is quite high.

Jake Malloy: In the offshore sector, I think you can go back to a report conducted by the Human Factors Group of the Health and Safety Executive who studied one particular building contractor, Transocean, and looked at four mobile drilling rigs and they looked at the attitudes and behaviours of those workers and specifically whether or not they would be prepared to report incidents and accidents, and they found that by in large they would not for fear of being disciplined or dismissed. So there is a clear deterrent in the way that alleged health and safety breaches occur. There is a clear deterrent to report them.

Q732 Lindsay Roy: Out of fear.

Jake Malloy: That you are going to be dismissed, yes.

Harry Frew: I totally agree with the comments that have been made. We have evidence of workers contacting the office to say that they fell and broke their leg but the boss has come up and picked them up in a car to come into work, you can work in an office as long as you are sitting down. You are getting things like that. We tell the individual what his rights are and terms but there is no RIDDOR report goes in on the basis of that. They are now looking at extending the time period on RIDDOR and I think that will just make it worse.

Q733 Chair: Sorry, explain what you mean by "time period"?

Harry Frew: There is a period of time before you report it, so they are extending that time, and I think that will make matter worse. I think the other part of the problem is that there are people within the management structures of some of the companies who are not clued up on what their responsibilities are and they may well be sending them in or they may be advised not to send them in, I do not know. But it certainly does go on. There is under-reporting, there is no doubt about that.

Q734 Lindsay Roy: We get a lot of fine words about reporting and health and safety issues but, as you pointed out, there are shortfalls. What practical measures can be taken to increase the level of reporting? One example we have been given is could it be done through hospitals and doctors reporting these accidents because sometimes people just do not record them at all?

Harry Frew: I think you would end up with quite a bit duplication, but if it helps improve it then that would be good. What then happens if the doctor then sends it in, does that mean the company are then prosecuted for not doing it? Is there a sanction going to be there? Do you need that? You have to look at all aspects of it; as it stands now the responsibility is on the company to provide it and report it. If they do not do that then, you know.

Q735 Chair: Just taking the broken leg example, if somebody was able to report that by an anonymous phone call like Crimestoppers, or the equivalent, then presumably that would be to somebody like the HSE who would then either have to make a choice about whether or not to follow that up, and then it falls to them. Because that, in a sense, enables the employee to do it without any fear. It might not be the employee whose leg is broken, it might be somebody who saw or was aware that there was a leg break. Is that a way forward in all of this?

Lindsay Roy: Possibly an opportunity.

Harry Frew: Yes, I think you get that just now anyway, but the HSE, what steps they take to address it. If they are only going to go and visit a particular site and something happens then the chances of them going for something like somebody has been asked to come into his work because they have broken their leg that would not be, I don’t think, a priority for the HSE.

Q736 Chair: If it was that somebody’s leg had been broken and not reported it might very well be. Help us here in a sense, because I think we agree with you that there ought to be more reporting. Where somebody has just slipshod and it is a farmer working, I mean an example from the NFUS was that lots of people who just work for themselves will work on, they will not bothering reporting it. That is quite difficult. But if it is in an organised site or where there is a lot of people and something happens and someone chooses not to report it, the idea of an anonymous report through someone like Crimestoppers seems to me to be the only way through, unless you have a union rep, safety rep on the site, in which case there is no problem. If you have no problem you have no problem, but if there is a problem how do we overcome that except by some sort of anonymised reporting?

Debbie Hutchings: I suppose if you have that reporting system it goes back again to the resources to follow that up, which would be difficult. I think having safety reps on site, we have already spoken that the facility time and involvement is not there. The scope of the rep’s role and enforcing that would address some of the issues of under-reporting, so there is consultation and the reps know what is going on within the workplace.

Q737 Chair: Yes, there is a descending scale, isn’t there? Presumably, the chap whose leg was broken and the manager brought him into work and it was not being reported, that was not a site where there was a safety rep involved, otherwise we would not be in that position. Given that you have sites like that, in a sense, I think we are aware of what should happen ideally, but where it does not it is a question of can you think of a better idea than having some sort of Crimestoppers equivalent? Not necessarily just now, but if you can think of a better idea let us know. This is an area where we feel we are going to have to recommend something. We would much rather recommend something after your input than just make it up on your own since we are-

Lindsay Roy: And given the practical experience you have, it is much stronger coming from yourselves.

Jake Malloy: I would say it is a role that the safety reps should be involved in and that they should file independent reports about the investigations of minor injuries and such like, and those reports should be put on record in the board, so that they can be referred to. Because all too often, and certainly in the offshore oil and gas industry, you cannot hide major injuries. But for lost time injury frequency and lost time incidents like Harry has experienced, too many people go into the office and make coffee for the period they should have been offshore and it is not a lost time injury.

My colleague has just handed me one potential group, and this is the rail industry who have created a confidential incident report and analysis system you could look into.

Q738 Chair: This is the industry, not the union, that has done it?

Jake Malloy: The rail industry has done it. We have had that with HSU, I am sure, for several years, but it is not used because of the nature of the industry, inasmuch as it is a small installation and if you have a minor injury and someone opts to use the hotline to report it then invariably it can be tracked back to that group of workers. Again, there is a reluctance to report it.

Q739 Chair: But that is not necessarily the case in all circumstances?

Jake Malloy: No.

Chair: If you have a better idea then give us it, otherwise we will probably run with that.

Q740 Lindsay Roy: What is the best way to measure the effectiveness of HSE and preventions? How do you gauge it given the level of under-reporting there is?

Harry Frew: I will give you one example of a construction company who got a visit from the HSE inspector, and as the site visit was taking place the inspector asked the site agent if the subcontractors who were working onsite had an exemption from wearing safety hats and the guy, who was the site agent, said, "It is nothing to do with me. They are subcontractors. I am the site agent and it is not my responsibility." He was then taken back to the site hut and he was told, "I am going to ask you the question again and depending on the answer you give me I will decide whether I put a prohibition on the site, close it down." So he asked him the question again, the guy repeated the same answer, "They are nothing to do with me," and the site was closed. I think that is the HSE doing what they should be doing because it was obvious that site became a major danger because the person who was responsible for the health and safety on it did not understand his responsibilities.

Q741 Lindsay Roy: That seems to be a frequently mentioned issue; the relationship between the main contractor and subcontractor. Do you find that across the board?

Jake Malloy: The greater contractorisation you have, the less adherence there is.

Q742 Lindsay Roy: Less responsibility, less accountability?

Jake Malloy: Absolutely, yes.

Harry Frew: We also had another instance with a crane on a site where an individual was bringing down bison beams, which is these concrete beams, which go on to a roof. Standing on the bison beam was one of the workers who had been lifted from the street on the bison beam and dropped into this hollow.

Q743 Lindsay Roy: Is this a sponsored event?

Harry Frew: It was a gold medal event, but the individual who was the site agent had been on site for three days to cover for someone who had been off on holiday, and when he saw what was going on he went out with his camera, he took photographs and got the individual down, reprimanded him, sent him home, told him he was suspended, sent the photograph by message to the head office saying, "This is what is going on. I have suspended this guy" and so on. The site agent was called into the office the next morning and sacked for being too vigilant. These are the types of things that go on in construction.

The individual took it to Tribunal and when he went to Tribunal the company made him an offer to go away, which he refused on two occasions and the third one he took the money and left. But that was typical of the construction industry. So when we say things happen in construction, why is Scotland different to the rest of the UK, maybe that is part of the reasons.

Q744 Chair: How do we respond to that, this is the question for us. We are clearly against it, these are bad things, but what is it that we recommend that would stop that? Presumably that was a unionised site, so simply having a union rep on it did not make a difference.

Harry Frew: We did not have a union rep on this site.

Q745 Chair: Again, this is the question of tell us what we could be saying that would make a real difference in these sort of circumstances?

Harry Frew: We say things like having roving safety reps may not solve all the problems because on that particular day when the bison beams were getting dropped this safety rep may have been on another site and he might not see it. But if that was common practice, what was going on in that site, and the site agent who was there before turned a blind eye to it and the new site agent who came thought, "We are not having this", then get sacked.

That is why I say that to have proper health and safety you have to have the company, the management, and you have to have the safety reps working together. If you do not do that then there is a failure, there is a gap. In some companies it may work fine but in the majority of them it will not work fine unless you have that cemented agreement.

Q746 Iain McKenzie: How do you define the difference between working together and working for?

Harry Frew: The examples were on the safety adviser, where we made the agreement with the Federation, the Federation then took responsibility to deal with the issue with their member companies. Working in partnership with them and the trade unions. They got that agreement, companies were then willing to participate and get involved, and it was not just to give them some advice on health and safety but to address real issues where the company did not understand the responsibilities on health and safety. We found that to be a great opportunity to try and bridge the gap between companies who had a fear that trade unions and health and safety reps were only there to hinder them as opposed to work with them and promote good safe practice. I think that message got out to that organisation.

On the other hand we appointed union appointed safety advisers to 800 companies. Without the backing of the Federation, wrote out to 800 companies and out of 800 letters we had two replies saying, "We think that is a good idea, come and give us some advice and we will work with you". There has to be a willingness that they do it, if they do it then things will be better, if they do not do it things will be made the same.

Q747 Chair: So your relationship then with employers’ organisations in construction presumably must leave a certain amount to be desired otherwise you would have that sort of level of co-operation at the moment. Who are the organisations representing employers in Scotland in construction with whom you do not have a sufficiently good rapport, in your view, to be able to have that sort of relationship?

Harry Frew: As far as the construction trade union goes they have a good relationship with the chief executives of all these organisations. They have good relationships with some of the companies in the organisations, but there are companies there who do not entertain trade unions.

Q748 Chair: Could you maybe tell us which companies those are?

Harry Frew: I probably could, yes.

Chair: Will you do so then?

Harry Frew: I will have a look at the list.

Q749 Chair: I think it will be helpful. Let me just come back to this issue of process.

Harry Frew: Can you tell me, as Chair, how that will help you?

Chair: Yes, I think we will consider when we meet at some point the construction industry representatives, we will be able to say, "We are told by the unions involved that these companies are not as helpful as others" and I think we would also-this is why I am wanting just to clarify this point with you about the umbrella organisations representing the construction industry, whether or not you have the sort of relationship with them that you mentioned earlier on, like with the Federation of Master Builders where you had a joint letter going out. What I am trying to clarify is whether or not you have that sort of organisation with all the umbrella organisations or not? To give you a parallel, when we had the National Farmers’ Union in here they agreed that they had not had the sort of liaison with the Health and Safety Executive that they might have wanted, so we have agreed that we will broker a meeting between the two and that we will invite along representatives from Unite the Union, representing farm workers to discuss how these issues can be pursued.

Now, if once we have some clarification from yourselves we identify a way in which we can broker some meeting when we say to the employers’ organisations, "Look, it would appear that you are not being as helpful as you could be with regard to promoting good practice; what is your response to that?" We would then take that matter further forward from there. We have taken the view that this is for your own good, as it were, and for their own good as well because unless we manage to flush some of these things out in the open and put some people on the spot about why they are not being as helpful as they might be then we are not necessarily going to get any progress.

Q750 Lindsay Roy: There have been recent attempts to vilify trade union officials who have some time to carry out duties, particularly in relation to industrial action. Do you feel that Government does not realise the key roles that people play in health and safety during that time they are given to carry out their duties? Some members of the Government tried to vilify trade union members who have time off to carry out their duties in relation to the strike action. I am just asking you, do you feel they do not understand the role they have to play in health and safety; it is a key part of the role of anybody who gets time off for trade union duty?

Harry Frew: I think the evidence is there that if you have a trade union organised workplace then the chances are that health and safety will be much better within that. Whether that is a price to pay for competence, whether they think that that is worth their while to pursue, I think there is still that fear factor between employers and trade unions. I think the latest correspondence of the last 24 hours of the monies that are getting used to pay for facility time for trade unions now looks as if it is going to be attacked. If that happens things will deteriorate even further. I think that is silly. I think it has been blinkered in how you should deal with things.

Chair: Just to come back to the point about why we would want to have information. We have not written to anybody who tells us they are in favour of poor health and safety. Quite genuinely, we met the CBI, they are all saying that we are in favour of apple pie and motherhood and stuff like that. I think where we can identify that things or structures are not operating at that high level we would want to be able to say, "Here is an example of where co-operation could take place and has not." Because I am conscious that there is so much difficulty in your own industry then that is why I was raising it with yourselves. Again, similarly, if the other two of you felt that there were employers’ structures where we could meet with them and say, "Look, we understand that some of your firms, or you collectively, are not being as helpful as you might," and put them in the spot, then I think that that would be a way of moving things forward more easily than recommending legislative changes, which are potentially much more difficult to achieve.

Q751 Iain McKenzie: Would you say there was a dramatic difference in reporting numbers from unionised businesses to non-unionised businesses? When we see the private sector and the non-unionised private sector moving towards savings by the natural reporting routes of elimination of the, for instance, plant nurse or doctor onsite and moving towards a medical provision of security people, and so on, taking on their duties and responsibilities and therefore they are the reporting channel. Do you see non-unionised being significantly less reporting by unionised plants?

Debbie Hutchings: Probably, again anecdotal, but it is raising the awareness that people know what those reporting systems are. If you have trained reps onsite, that is the type of thing that unions would let them know about and would train them on, but if you are in non-unionised workplace, who is going to give you this information? You have to go and look for it or you have to rely on the management being proactive and informing you.

Q752 Iain McKenzie: In that respect, do you see a dramatic drop when the reports from non-unionised private sector-

Debbie Hutchings: I do not have any evidence of that; that would just be my assumption.

Q753 Iain McKenzie: Do we have any evidence?

Jake Malloy: Turn it on its head and look to the HSE studies, which show repeatedly that unionised workplaces are safer workplaces. So there is less support coming from unionised workplaces, clearly because they are performing better. Where you have non-unionised workplaces the incident/accident rates are significantly higher. That is HSE’s own findings.

Q754 Chair: To be fair, that that is capable of interpretation in more than one way, isn’t it? Because big plants with big firms tend to be more unionised and they tend to have better safety records. It is a question of whether or not one flows from the other or the two are operating in parallel. That is the issue. I am not sure it as clear-cut, I am sympathetic to the position you have suggested.

Q755 Iain McKenzie: Just in relation to data capture and setting priorities and just a question to you all. Do you think the differences in the Scottish economy compared to the rest of Britain are adequately addressed by the HSE?

Jake Malloy: I am not entirely sure. Can you say that again?

Iain McKenzie: As in respect of the profile of the Scottish workforce being different, the HSE uses a national risk assessment, and what I am saying is do you think the differences in the Scottish economy could get the rest of Britain as adequately addressed with the HSE?

Debbie Hutchings: In prioritising their targets; is that what you mean?

Iain McKenzie: Yes.

Debbie Hutchings: Okay, so at the moment what they are using is a UK-wide risk assessment. Definitely there should be more Scottish emphasis, localised emphasis on priorities in Scotland.

Jake Malloy: As Harry has already said, the rate of death in Scotland supports that approach, a different approach if you like, from the HSE in Scotland.

Harry Frew: The Health and Safety Executive are there for a particular reason. I do not think that the Health and Safety Executive look upon an increased number of fatalities or accidents as good. I believe that they are just as committed as the trade unions, are just as committed as the safety reps, to try and make things better in whatever the industry might be. There has been pressure put on from the trade unions on the HSE in Scotland; there have been improvements in terms of the number of inspectors who have been brought in over the past couple of years. My concerns now are, can they sustain that with a 35% cut in the budget? What will the impact of that be in terms of site visits and so on, and if they are only going to be proactive?

Lindsay Roy: Sorry, I have a flight to get in Edinburgh and given the state of the roads I want to get there.

Harry Frew: If they are only going to be proactive and deal with things as they come up, then what you will get is stagnation of health and safety within the workplace. There will be no involvement on the other issues, which they do a good job at the present raising their awareness of the falling from heights, the slips, trips, all that type of thing. They are raising that profile. I think we are cutting the budget to have less inspectors out on site, only dealing with fatalities and dealing with serious accidents as they happen. I think we will see a watering down of health and safety, which will be to the detriment of all industries in Scotland.

Q756 Iain McKenzie: Do you agree that the data could be improved by looking at it in a more local aspect, that is Scotland, rather than UK-wide?

Harry Frew: Also you have to remember the HSE have, with the new workings that came in, allowed local authorities to take a responsibility for health and safety. Is it going to be treated the same as the pearls of the HSE? Is it going to have the same impact when you say to a company, "Look, there is a major issue here. We are bringing in the HSE"? It is usually jump, all hands, all men man the pumps, but if you say, "We are going to get in contact with the local authority because there is an issue here" it does not have the same ring to it. The HSE is like the big sheriff badge.

Q757 Iain McKenzie: The safety needs of Scotland can be best if the HSE remain in a UK-wide body?

Harry Frew: I am not for devolved control in certain issues, but the HSE have to be the main body for dealing with health and safety in Scotland.

Iain McKenzie: And the other two; do you feel the same way?

Debbie Hutchings: Yes.

Jake Malloy: Yes.

Chair: Can I just say something, as you can see the snow is falling and some of the folk here have to fly to London later on, which we have a slight bit of a panic about? I presume that none of you want to be trapped in the City Chambers all night. I have to be somewhere by 8pm so we will try and move things up. That is a joke.

Q758 Graeme Morrice: I will be particularly quick, Chair, because I am obviously one of those required to be on this 5.15 flight to London. Can I ask, why do you think the rates of major industries in Scotland has been significantly higher than for England and Wales, and particularly in construction and manufacturing? Is there a proportionate difference in the number of major injuries among direct employees and contractors in your sectors? Could I also ask, do you have any members in the waste and recycling industry? If I could ask Harry first, then Jake, and then Debbie, and I would appreciate brief answers, if you would not mind, thanks.

Harry Frew: I will go back to the last point first. Waste and recycling, it depends how you look at it. We have people who work in civil engineering who would deal with waste and so on, but I do not know if that is the type of waste you are talking about; sewers and so on.

Graeme Morrice: Waste management.

Harry Frew: We have also had in some of the major sites an issue in looking at the environment and what is the best way to organise certain things. That was done through the reusing of materials on site. Bringing in people and training them to deal with the waste that would normally be shifted from one site to a landfill. They managed to reduce the number of journeys going back in terms of taking away risk from a construction site to wherever it was disposed of by recycling and reusing, so much so that it saved the company £1 million just by managing their waste at that particular time.

I think if you invest in it you can certainly cut down the amount of waste and how you deal with the environment and what you do to be eco-friendly and so on. It is certainly getting positives in that. But I think it may be something other unions deal with more than I do.

Jake Malloy: I think potentially-there is no evidence to support it-geographical logistical costs. Where you have costs you have a reluctance to do the right thing. That may have a bearing on it but we are not involved in waste recycling as yet, but we are hoping obviously to see that remedied with the CO2 re-injection plant possibly up on the east coast, and inevitably our members will be involved in that in some way shape or form.

Debbie Hutchings: Yes, we do have members in waste and recycling but, I am sorry, I do not have any information or evidence of that sector.

Harry Frew: Can I just come back to the first part of your question, it was in terms of the major injuries that we have in Scotland, fatalities and accidents. I do not know what the reason is, why Scotland seems to be higher than the rest of the UK. As I said earlier, Caledonian University, a boy called Billy Hare, was commissioned to look into it. It may be helpful to get that report from him in terms of how Scotland-he highlights certain things but I do not think you can be definitive in terms of why there is a difference. But it is clear that if you take the evidence, there is a higher chance of fatalities or serious injuries in Scotland.

Q759 Graeme Morrice: That is the point I am trying to obviously get to, why that is the case, but we could take up the offer in looking at that piece of work that you mentioned earlier. Why do you think a number of HSE major injury investigations almost halved between 2007 and 2008, and 2009 and 2010?

Harry Frew: I don’t know the reason. I do not know whether it was a case of that is all the incidents that happened, maybe people were more proactive in health and safety, I don’t know. I don’t know what the reasons are. If it was construction you could use 2006, 2007 up to now that you could see that there is not as much construction work as what there was prior to that. That is the only the kind of evidence I can give.

Q760 Graeme Morrice: Jake, do you concur with that?

Jake Malloy: Obviously it is a deregulatory regime that we live in. There is a reluctance on the part of Government to enforce to that extent because it is burdensome on industry. I think that sends out all the wrong messages and that we should be enforcing and inspecting to a greater extent and getting greater buy-in from the work force to tackle this quite obvious problem.

Q761 Graeme Morrice: Have you noticed a reduction in inspections in construction or manufacturing since the comprehensive spending review?

Harry Frew: It is obvious there is evidence, I am sure there has been a reduction in that. Regardless of what we have said, 35% of the budget is quite significant and if you are getting that message back from the HSE they are not going to be as active as they normally would. That is clearly a problem. The other part of it is that there is a charging system now, which allows the HSE to make a charge. Whether that goes direct to the main contractor or subcontractors. Whether that money, which that charge is levied at, brings an income back to the HSE or does it go into the coffers of the Government? I am not 100% sure on that. But certainly I have not had it clarified. I do not think the HSE, when I was last speaking to them, were sure what was going to happen in terms of themselves.

Q762 Graeme Morrice: Jake, can I ask you, Oil & Gas UK told us they did not expect to see a change in Health and Safety Executive work in their industry as a result of efficiency savings because it is largely self-financing through COMAH; do you share their confidence?

Jake Malloy: Yes, by and large. We have had an assurance from the Commission, the policy people, Judith Hackitt, that there would be no reduction and in fact because it is a charging regime it is to be encouraged. It is a revenue scheme for the Government. I would like to think we will see no change.

Q763 Chair: Can I just ask you your general views on a proposal that HSEM revenues were a cost recovery programme? And before you answer could I tell you that we are aiming to finish by 4.45pm, so I think we have covered quite a lot of the ground already and we want to give you the opportunity to say any other points at the end, so brief answers would be helpful.

Debbie Hutchings: Cost recovery?

Chair: Yes. The HSEM revenue from cost recovery. Do you think that that is likely to be helpful or not? Do you have any observations about that?

Debbie Hutchings: Possibly. The only issue that we might have with that is that whether there would be a situation that that encourages under-reporting, so that would have to be looked at at the same time to make sure it does not happen.

Chair: We had that point made by employers as well.

Q764 Iain McKenzie: What are your initial views on the Löfstedt report and the Government’s response published last week?

Debbie Hutchings: Unite did put quite a robust submission in and we do feel, now that the report recommendations are out, that there are not going to be too many changes to the health and safety system. The benefit to the employer outweigh the benefit to the employee. There is no recommendations that are likely to increase safety or reduce occupational ill health or to support safety reps. One of the concerns that we do have is the area of exempting from health and safety law, "Those self-employed whose work activities pose no potential risk or harm to others". That is the quote. In the area of construction and agriculture we feel that this may well encourage more bogus self-employment by unscrupulous employers.

Jake Malloy: I defer to my colleagues on that because I am not involved in that side of it.

Harry Frew: Obviously from our point of view, we just see it as another watering down of health and safety. Certainly the recommendations are not making things stronger or tighter, they are being a wee bit more relaxed. Things like the construction industry being treated as a non-major hazard industry, I think they got the message totally wrong. When you look at the fatalities and accidents that we have in our industry then it should be high priority. I think anything that detracts from that will be detrimental to all industries.

Q765 Iain McKenzie: Would you say you feel the same way as Debbie, that it is weighted towards employer rather than employee?

Harry Frew: Yes, definitely.

Q766 Chair: Is there not a point though about trying to separate low risk from medium risk and high risk, in that they want to focus much more on higher risk, which is why the self-employed, like accountants or somebody similar, who is clearly not at risk of injuring somebody else during the course of their employment generally should be treated completely differently from those who are working in different environments. I understand totally the question of bogus self-employment but surely at a time of limited resources, when realistically they are not going to enforce things right across the board anyway, having a separation of those that are of minimum interest to them from the rest is productive?

Debbie Hutchings: I disagree with that. The whole use of low risk is quite concerning. A lot of our members work in the finance industry in offices and you would think that is a low risk area, but it is the amount of occupational ill health and the stress and mental health issues that we see and we deal with, with claims and things. I do not think that is a low risk workplace, it is just different risks. If you start bandying about this low risk it is going to be that maybe potentially there will not be as much resource spent in those areas of occupational ill-health.

Q767 Mr Reid: I agree that there are risks of ill-health there, but is that something where regular HSE inspections are going to have any beneficial effect?

Debbie Hutchings: I can see what you are saying. Possibly not, but we would hope that things like stress, at some stage, would be looked at under regulation, so the effects there are just as harmful. I think maybe the wording of "low risk" is not something that benefits the situation.

Q768 Mr Reid: Is it more the wording rather than less inspections that you are worried about?

Debbie Hutchings: No, I would like to have more inspections everywhere.

Q769 Chair: We have had this discussion; it is a question of focus and I think we are also conscious that there is a difference between those areas, which are potentially more occupational health issues, in a sense, like repetitive strain injury and the like, as distinct from, say, construction where it is a question of falling off something or a rig that could explode. These are slightly different issues and we have tended to be thinking more about impact injuries as being the thing that requires to be addressed, and we have not been as much addressing occupational health because a lot of occupational health stuff almost verges over on to the devolved. It is then, to some extent, a health service and it is a different style. Whereas the health and safety stuff is much more about disastrous consequences and so on, and therefore any strategy that is risk-based and focuses on those areas where there is most danger of somebody breaking something or being killed is therefore worthwhile.

We have been getting the feedback from business that they think that is sensible because what is the point of having health and safety inspections in workplaces where you point out holes in carpets rather than holes in pipes. What we are just wanting to see is whether or not there was any observations that you would make on all of that, that we maybe ought to be reflecting back?

Jake Malloy: From the oil and gas perspective, I don’t think anybody would dispute it is a major hazard industry.

Q770 Chair: So you would not be affected by that question of focus?

Jake Malloy: Potentially we could be because if you listen to the industry you are more likely to suffer an injury as a postman by being bitten by a dog than you are working offshore. It is how it is construed and how the argument is made as to what constitutes high risk. If it was going to be based on injury statistics, especially when you have under-reporting, then you could find a major hazard industry, like the construction industry, going further down the line, being considered less hazardous and therefore subject to less inspection. I think it is a dangerous principle to apply.

Q771 Chair: In that case, I am trying to clarify from you then, if you are not happy with that focus do you accept that there ought to be any sort of focus or any sort of emphasis or should everything be treated equally? And if you are not happy with the alternative focus that has been suggested here, is there a different system of focusing that you would prefer, given the resources are insufficient and that we are not going to be able to do everything everywhere?

Jake Malloy: Major injuries, fatalities and the nature of the business must have some reflection on the level of inspections, I would have thought. I take your point about occupational health, but it is still a very crucial point to those workers involved in those areas.

Chair: I understand that.

Jake Malloy: I would not want to-

Chair: I think we will report that and indicate that that is not what our focus had been, and also the people that would deal with that would not necessarily be putting the Health and Safety Executive in quite the same way. There are occupational health structures operating in Scotland in which the health service plays a major role and Health and Safety Executive is not quite as prominent. The health service does not have quite the same role in construction for example.

Q772 Mr Reid: You mentioned judging the risk of an industry by the number of incidents. I presume it would not simply be on the number of incidents. I presume there would be some sort of scoring process where the severity of the incident also gets more points, an explosion will get more points than a dog bite. If it was done by some sensible marking process would you feel happier about that?

Jake Malloy: Yes, and I think if that marking process was done transparently it would assist as well. That way you could identify the worst offenders, the poorest performers and target your resources in those areas and draw in the best practice from the good performers.

Chair: I think we are going to say something along those lines.

Q773 Mr Reid: I just wonder if you could tell us what your relationship with the HSE is like?

Harry Frew: Certainly our relationship with HSE is pretty good. We do not always agree with them, when Judith Hackitt came in the statement that she made was that we do not need any more regulation in health and safety. You cannot criticise her for that because if you are leaving it to employers to manage and run their own health and safety then I think we would be in a sad state of affairs.

Some of the things that have been talked about in the last minute or so about self-regulation and things like that, you can take on board the Government’s myths about getting injured playing conkers or egg and spoon races. That is not the health and safety you are talking about; we are talking about serious health and safety. I would be concerned if there was a point scoring mechanism to determine how serious a particular thing would be, like a dog bite. What is it? Is it the individual’s bitten by the dog or the dog ate his finger off, or how serious does it become? Putting a points system, or a scoring system, or a mechanism there, I think the HSE and the experience that they have built up over the years is probably second to none.

Q774 Mr Reid: Do you find they are receptive and willing to engage with either yourselves or your members’ with concerns?

Harry Frew: Yes, they are, sometimes we come screaming. They are, yes.

Jake Malloy: By and large a good relationship.

Debbie Hutchings: Yes, we have a good relationship. We have been involved with projects with the HSE before. One of them, the Better Backs campaign a few years back.

One thing that does come back from conferences and calls we have from reps, that often there is not the consistency of consultation with the HSE where, in some areas, if an inspector comes on site they will go straight to the reps and have a discussion with them. Sometimes it comes back to us that they do not know the HSE inspector is onsite and have had no consultations. Often a conversation we have with the HSE that we would like to see more consistency and approach that they do speak to the reps when they are onsite.

Jake Malloy: That point has been raised by our members as well, but what I have found is that the older inspectors are less reluctant to engage, whereas the newer inspectors are far more likely to engage. I think it is, with the greatest respect, without sounding ageist in any way, it is just a cultural change. It is a culture from where they have been to the way we work now.

Chair: I am sure the HSE will read the evidence we are giving them, and therefore that point will be reflected, so that is helpful.

Q775 Mr Reid: If your members make anonymous phone calls to HSE, do the HSE follow them up?

Jake Malloy: Our members are reluctant to make calls to the HSE because invariably it comes back to them. The hotline tends to be on my desk and I conduit that round to HSE.

Q776 Mr Reid: But even if you phone in about a particular company could the company still work out who the-

Jake Malloy: What the inspectors tend to do, this is why we have a good working relationship with them, they raise it through the routine inspections, so it sits mass.

Harry Frew: I think it maybe comes down to the message that you are giving HSE. If you were saying "There’s kids playing with fireworks," then they might not come out but you can say, "There have been three kids put into a barrel," and if you threw fireworks in there it would be a totally different reaction.

I think depending what the circumstances are, and I think, as I said earlier, that there is going to be a common sense approach to everything. We had an instant in Aberdeen three or four weeks ago, where there was a chemical emission, and we were right on top of it right away, we had the council, the chief executive down, we had the building manager, we had the HSE and it was dealt with quite quickly. So depending on what the circumstances are you will get a reaction. But if it is something relatively minor then you may not get it as quick.

Q777 Mr Reid: Do they make the right decisions over which ones to respond to?

Harry Frew: They only make the wrong decision when they do not appear when you want them to. But they obviously have to make a judgement.

Q778 Chair: I have been told the taxis are outside and we have one minute. Are there any final points that you want to make that we have not covered?

Jake Malloy: Just to reiterate the EU. I think that needs to be looked at.

Q779 Chair: I think that is helpful. Can I just raise one point with yourselves, and that is that one of you mentioned the possibility of victimisation of people. How do we deal with it? How do we get people able to tell either the HSE or somebody else what has been happening without the threat of either victimisation or black-listing? Clearly in a situation where you maybe do not have union safety reps and the like, we need to have somebody responding, how do we protect them, what is the methodology by which that is done?

Harry Frew: I think for us it is about empowering the individual with the knowledge to deal with it. There is one organisation where I met 20 reps and I said to them, "How many of you have been on courses, how many have done the training?" and out of the 20 there was about 15 who had not had training, saying things like, "We have been in the game a long time, we don’t really need the training. We know it" and I said, "No, resign then. If that is the case, if you do not want to go to the training, if you are not going to keep it up then just resign from your position" and they did and we replaced them. Now everybody that comes in gets the basic training-

Chair: But that is presumably a unionised site where you have the reps. There are going to be locations where you don’t have that. This is one of the issues that I think we are wrestling with.

Anyway, I am being told that we have to stop now. Thank you very much for coming along and giving us your evidence.

Prepared 27th January 2012