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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1344-viii
House of COMMONS
TAKEN BEFORE the
Scottish Affairs Committee
HEALTH AND SAFETY in Scotland
Wednesday 11 JANUARY 2012
PROFESSOR RAGNAR LÖFSTEDT, SARAH VEALE and ADAM MARSHALL
CHRIS GRAYLING MP, JUDITH HACKITT and PAUL STOLLARD
Evidence heard in Public Questions 874 – 990
USE OF THE TRANSCRIPT
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Taken before the Scottish Affairs Committee
on Wednesday 11 January 2012
Mr Alan Reid (Chair)
In the absence of the Chairman, Mr Reid was called to the Chair
Examination of Witnesses
Witnesses: Professor Ragnar Löfstedt, Director of King’s Centre for Risk Management at King’s College, London, and Chair of the Independent Review of Health and Safety Legislation, Sarah Veale, TUC and member of the Review Advisory Panel, and Adam Marshall, British Chambers of Commerce and member of the Review Advisory Panel, gave evidence.
Q874 Chair: Thank you all very much for coming to help us in our inquiry into health and safety in Scotland. My name is Alan Reid; I will be chairing the Committee today. The Chairman, Ian Davidson, sends his apologies. His mother died a few days ago, so he is not able to be here. Perhaps you would start off by introducing yourselves, please.
Sarah Veale: I am Sarah Veale. I was a member of Professor Löfstedt’s review team, and in my day job I am also head of equality and employment rights at the Trades Union Congress.
Professor Löfstedt: My name is Ragnar Löfstedt. I am professor of risk management at King’s College, London. I work in the area of risk communication and risk management, and I chaired the Löfstedt review.
Adam Marshall: I am Adam Marshall, director of policy and external affairs at the British Chambers of Commerce. Like Sarah, I am a member of the Löfstedt expert panel.
Q875 Chair: Thank you very much. When conducting your review did you visit Scotland at all?
Professor Löfstedt: I did, and I had great pleasure in visiting Scotland. There is a special relationship between the Swedes and the Scots, who are almost at the same latitude. I had a great time. I visited the following places. We had a forest visit in Tweed Valley with Sheffield Harvesting, which I requested for two reasons. First, the forestry sector is very hazardous; and, secondly, being Swedish, I have a personal interest in trees. In addition, we visited Ian Tasker from the Scottish TUC, who I understand gave evidence to this inquiry last year. We had conversations with Hayley Wotherspoon from the Scottish local authorities and Brian Lawrie of the Society of Chief Officers of Environmental Health in Scotland. We also met the Scottish Government and the Scottish Centre for Healthy Working Lives. We had a very fruitful visit, and I am thankful to the people in Scotland for taking time to see me.
Q876 Chair: When you were talking to Scottish witnesses, did you notice anything different about health and safety issues in Scotland compared with the rest of the UK?
Professor Löfstedt: No, I did not. Overall, I found that the Scottish Health and Safety Executive was just as open-minded as our friends here in England. Overall, I felt that people took health and safety issues very seriously in both places. I was particularly pleased to go to the forest inspection site. For example, we saw that what was happening in Scotland was happening in Sweden. I should clarify that in my youth-I grew up in Los Angeles, as I am sure you can hear from my American English accent-I spent my summers in Sweden. I became a lumberjack and have cut down quite a few trees in my past, as you do. I made a personal plea and spoke to the lumberjacks on site. In my view, their health and safety training was higher than that of my lumberjack colleagues in Sweden. I see that as very positive. Please keep up the good work.
Q877 Iain McKenzie: My question is in three parts. First, health and safety regulation has a bad reputation and is often portrayed as bureaucratic and burdensome. Would you say that is a fair assessment?
Professor Löfstedt: That is a very good question. Health and safety regulation is very important and is something we should take very seriously. We do not want to have injuries in the workplace. The work on risk communication shows that people are much more worried about involuntary than voluntary risks by a factor of 1,000 to one. People are very concerned about them. In my view, health and safety regulation is not burdensome and we should be doing more work on it to protect the work force of this country.
Sarah Veale: There is a problem with a myth about the culture of health and safety. It has always gone mad when described in some of the popular newspapers, has it not? I think you need to detach public health and safety from employment health and safety, and a lot of the myths are about things like playing with conkers and that sort of thing, which seem to amuse the Daily Mail. I would highly recommend the HSE’s myth-busting exercises. They look at the myths perpetuated in the media, get to the bottom of them and show they are not based on evidence; often, they are completely wrong. The more the HSE can do to dispel those myths the better so that we can get on with the real business. But I quite agree with Ragnar that, generally speaking, health and safety regulation works well, and union safety reps find it pretty easy to use. Certainly, compared with employment law, it is pretty easy to use. Although you can always improve things, basically it is good and does not need to be fundamentally altered.
Professor Löfstedt: In my view, the media amplify these health and safety issues far too much. It may be that at some stage a committee here should look into it to ensure that the media become better communicators about risk and the size of it certainly than they are today.
Adam Marshall: I put a slightly different gloss on this. As the review found, the principal problem is not the regulation itself. Occasionally, there are issues with its implementation, and very frequently there are issues with its interpretation and application on the ground. Some of the perceptions that develop in the application of health and safety law turn into a reality that is very much their own. Those are the things that businesses find so difficult to deal with. They are forced into a situation where they believe over-compliance is the only route forward, or they believe that the regulation compels them to do something which it does not. When we survey members, nearly half consistently tell us that health and safety regulation is particularly burdensome. What they are referring to is not the regulation itself but very often its implementation or the perception of the burden associated with it.
Q878 Iain McKenzie: Whose responsibility would you say it is to educate employers and employees to dispel the myths?
Professor Löfstedt: That is a very good question, and it is something I raise in one of my recommendations. I think we should have a broader discussion in the UK on risk-based issues. For example, I recommend that the House of Lords should set up either a Select Committee on risk or a sub-committee of the Science and Technology Select Committee on these issues. I also recommend that the Chief Scientist of the UK should be working with the Government and others-academics, trade unions and industry-to have a broader discussion on it. This discussion is needed now, and the sooner we have it the better.
I would also like to put on the record that I am hoping this will get support from your Committee and that you will also be talking to the House of Lords about pushing through that recommendation. I am sure that you will also have a discussion in Scotland.
Sarah Veale: It is very important that employers have full knowledge of and access to the Health and Safety Executive’s very good materials. I would take the opportunity to remind the Committee of the importance of employees taking responsibility as well and recommend the role of union safety reps. Often, someone who is employed in a particular workplace that might be high risk is more likely to listen to a fellow worker saying, "Hey, come on; that’s silly", than to read a notice put out by the employer. So the role of safety reps and that of employees in looking after health and safety issues is also important. The two should work together. It is an area where employers and employees should work together for the common good.
Adam Marshall: That is right. There is also an issue with the HSE being seen very much as someone with whom employers and employees can communicate. Too often, because it is a regulator, the enforcement relationship is seen as its principal purpose. That is common among lots of other types of regulators that can impose penalties on businesses or individuals. You want to see a positive culture of communication arise whereby a business can go proactively to the Health and Safety Executive for advice on things. That happens in some cases but not in all, and you would want to see it more often.
Professor Löfstedt: Overall, the evidence we saw was that the majority of employers and employees welcomed the HSE and wanted to have more contact with them.
Q879 Iain McKenzie: What would you see as the best way to force employers who wilfully ignore health and safety to comply with the regulations?
Professor Löfstedt: That is a very pertinent question. I have worked in the area of risk communication since 1986 and the Chernobyl accident. The crucial issue is one of reputation. What I mean by that is that employers who wilfully do not follow the health and safety rules should be named and shamed on the Health and Safety Executive’s website. In so doing, their reputation will be affected and their credibility will suffer. People will ask the company, "Why are you doing this? It looks really bad." Reputation is crucial for the industry in question. The best way forward is to do it by naming and shaming.
Adam Marshall: I agree with that to a significant extent. I am fortunate in having a membership of civic-minded companies. For the large part you join a local chamber of commerce because you care about both your employees and the health of your local community. These are businesses that, by and large, see themselves as compliant and on the side of the angels in these matters. They want to throw the book at those businesses that are non-compliant.
Sarah Veale: So indeed would we. Under-compliance is a huge issue. We think that broadly the regulations are good, but enforcing them is sometimes rather more difficult. We would throw the book at employers who, wilfully or through ignorance, expose their employees to danger or do not do proper risk assessments. It is a very serious offence.
Q880 Iain McKenzie: Do you believe that naming and shaming may not have an effect on companies that are not so large? It may have a good effect on large companies that value their name, but smaller companies may be able to regroup, say.
Professor Löfstedt: That is a great point. You could be right. Naming and shaming works better for bigger multinational companies than smaller ones. Another stick you can use is to increase the fines, which I understand is being discussed in Scotland. The schedule of punishments is becoming higher. That may be something you want to discuss in the next session.
Q881 Chair: I want to follow up on something Mr Marshall said. He said the problem was not the over-burdensome nature of the regulations themselves but their implementation and how they were perceived. What can government and Parliament do to rectify that?
Adam Marshall: The first thing which came out very much in our work as a consultative panel was consistency. What companies say to us, especially when they have multiple sites around the country, is that regulation is inconsistently applied, leading them to take a very maximalist view of what sort of implementation is required. It is a huge problem. In England there has been some success with the primary authority scheme, i.e. one local authority being responsible, and the HSE in the areas where it has responsibility has been somewhat more consistent. Yet businesses say that is probably their single biggest problem. It leads them to a set of behaviours that probably is not required of them.
Q882 Chair: Are different local authorities applying different interpretations?
Adam Marshall: It can be different officers of the Health and Safety Executive or different local authorities. The Health and Safety Executive is often perceived as being more consistent than local authorities.
Q883 Chair: Presumably you have raised this with COSLA and the Health and Safety Executive. What sort of response have you had?
Adam Marshall: I will have to follow up with my colleagues in the
Scottish chambers of commerce on that particular issue, but I know there is an interest in that consistency in Scotland, just as much as there is in England.
Q884 Fiona Bruce: We found that under-reporting was a considerable problem in Scotland. I want to ask you about the review of regulations in this context. At the moment RIDDOR is important to encourage reporting, collecting data and helping the Health and Safety Executive to set priorities. Lord Young recommended a review of RIDDOR, and you have recommended that the regulations should be amended to provide clarity. Can you explain to the Committee how you would like to see RIDDOR changed?
Professor Löfstedt: I share your concern that we have under-compliance with regard to RIDDOR. One of the key issues in speaking to people on the ground both in England and Scotland with regard to RIDDOR is the wording used. If you look at the document, it is some 40 pages in length and its language is very bureaucratic and legalistic in tone. Even for a professor, it is difficult to follow. What I recommend going forward is that we should try to simplify the language used in the RIDDOR document and shorten it. We looked at a number of countries, including Ireland. We think that maybe there are some lessons from Ireland that we could use for this. I also understand-this may be something you want to explore in the next session-that HSE is already addressing this. It is aware of the problem.
Q885 Fiona Bruce: Do you think the HSE has sufficient resources to review these regulations?
Professor Löfstedt: That is also a very good question. Before I say anything more, I would like to thank the Committee for having a discussion on health and safety. It is the first committee in which I have participated, and I am very grateful that you are doing it now. We have spoken to HSE about resources; we have spoken to the other actors in London and elsewhere on these issues who are experts in the know. Once again please ask the HSE in the next session, but my understanding is that presently it has the resources to do this.
Sarah Veale: In my view it is under-resourced now. I do worry that the impact of the Government’s economic programme and the cutbacks on expenditure generally are hitting the HSE as much as anyone else. If you have less resource, you have less available to enforce these various regulations. I would at least hope that the reductions made following Lord Young’s report in accident reporting are monitored carefully to make sure they do not have any impact on safety, but, if they do not, and the HSE is reasonably sure they will not, it is not a huge worry. But it needs to be watched. Clearly, you do not want to cut something and just leave it.
Professor Löfstedt: Of course we don’t.
Adam Marshall: I share Ragnar’s concerns about under-reporting and the fact that very often it comes down to confusion as to what it is you are meant to report.
I have encountered a number of business people who have simply said, "I don’t know what it is I am meant to be reporting." It is a pretty simple question, and that is where clarification is required.
The following problem emerges from this. Those who do report are most likely to be the subject of follow-up enforcement visits, so in a sense the virtuous that are doing the reporting end up with the bigger regulatory burden thereafter. One would wonder whether that is the best position for us to be in, and further investigation will be required there. You want those who are not reporting getting the visits.
Fiona Bruce: Absolutely.
Sarah Veale: That is true, but the solution is not to do even less reporting. You could say that about any kind of law, could you not?
Adam Marshall: We would like to see a correction of the problem of under-reporting. I like Lord Young’s proposal to extend the period to seven days to give you a bit more time to get the paperwork together and get it sorted, but definitely you report because people’s lives and health and safety are at risk.
Q886 Jim McGovern: I am quite worried by what Adam said. He seems to be saying that perhaps it is better not to report something in case there is a follow-up. I think it should always be reported. Do the witnesses agree that any risk or hazard should always be reported? When we are talking about amendments to RIDDOR, are we talking about just amendments to the wording but the practicalities would remain the same?
Adam Marshall: To clarify, I am not suggesting that we promote under-reporting in any way, shape or form. I am suggesting that those who do report get support as a follow-up rather than further enforcement, whereas those who do not report and who are found not to have reported should face the full force of follow-up investigation. Under-reporting is a problem, absolutely, but we do not want to see a situation where, as you have just said, companies are almost incentivised away from reporting because they feel it will be a problem for them. That is not the position we adopt.
Q887 Jim McGovern: I apologise. Perhaps I misunderstood you. I thought you were implying that reporting was a problem.
Professor Löfstedt: We need to ensure that there is greater reporting. Part of this review was to simplify the health and safety mechanisms and ensure people had a greater understanding of them. As a communications person, I thought that if we could simplify RIDDOR we would have more compliance and reporting, and that would be welcome.
Q888 Jim McGovern: So it is just a change to the wording.
Professor Löfstedt: Absolutely. That is what we want to do right now. We want to change the wording and simplify the document. The document is simply too big and legalistic in tone. If you can decrease the wording significantly and make it more understandable for people out in the workplace, I think, Sarah, it will be welcomed by everybody.
Sarah Veale: Definitely. The point is that it has to be enforceable, and, if it is too complicated, then by definition it won’t be and people will skip doing it.
Professor Löfstedt: Exactly.
Q889 Jim McGovern: But the purpose of the regulation will remain the same.
Professor Löfstedt: That is correct, as I see it.
Q890 Lindsay Roy: How approachable is HSE for business and industry, and how do you know?
Professor Löfstedt: In the review, the evidence we got was that the vast majority of employers who had contact with the HSE reported it as a very positive experience. I went to a number of building sites. One of the inspectors came to a site and gave advice. Overall, the message I received in both written and oral evidence, as well as from site visits, is that HSE is very approachable. I also understand it is working on its website, and I hope that its website activities will make it even more approachable. We did not find any evidence of the HSE not being approachable.
Q891 Lindsay Roy: As you said, communication is absolutely vital: simplifying language, preparing a website and so on. What more can HSE do?
Professor Löfstedt: That is a very good question. HSE is doing as much as it possibly can with the resources it has. That is the opinion I have personally and that was also what we saw coming out of the review. Going forward, I would love to see the possibility of HSE working with a number of other bodies, charities, academics, trade unions and industry, to promote the health and safety message to ensure we continue to have an excellent safety record as we have in the UK. Adam, do you want to add anything to that?
Adam Marshall: I would. I go back to the first part of Mr Roy’s question about business perceptions of the Health and Safety Executive. They can be mixed at times. Generally, they are more positive than negative. Some say that it gives very good advice to them; others perceive, whether correctly or incorrectly, that sometimes the HSE might be out to get them. That is a perception reported back to us. I would not state it as a fact. There is a concern about some of the proposed changes in the HSE which I think could go in the wrong direction-this is not a proposal in the Professor’s report; it is the HSE’s-to do with fees for intervention. If the HSE is seen to be out to communicate with businesses or enforce businesses in order to get money in and perpetuate its own activity, some of the confidence that companies have in the HSE might be undermined. It is a very important issue for us to deal with.
Q892 Lindsay Roy: Does the HSE have a role in highlighting and sharing good practice? I know that sometimes companies are reticent about sharing their practices, but I can think of companies in my constituency employing 400 people or more-they are unionised, non-unionised and mixed-which have RoSPA awards, health and safety awards and so on. To what extent is that kind of educational programme taken forward, or can it be?
Professor Löfstedt: That is an excellent example. In my view, we should learn from this. That came out of work by Aaron Wildavsky in a book published in the 1980s. Basically, it is about learning from trial and error so that you become better at what you do in health and safety. These types of issues need to be shared by a broader society. I think we should see more academic work on it and try to bring in some of the success stories and case studies, sharing them with the broader community and saying, "This is what happened in this area of Scotland. What can we learn from this place to ensure it does not happen again?" We should do much more sharing to ensure we have a safer workplace in the UK and elsewhere. Sarah, do you want to jump in?
Sarah Veale: I completely agree with what you say. There is always difficulty with a body that does both enforcement and advice and education. I can understand why some businesses would be nervous about inviting in someone from the HSE, or even phoning it, to discuss a potential problem in case the HSE says, "Yes, that is a problem and we’re going to take you off to wherever." Probably the HSE needs to do more to educate its stakeholders that there is no necessary cause and effect. You do not go in and help and then automatically prosecute if you see a problem. You would advise on how best to make sure the problem is dealt with before you even thought about going on to that stage. It is a problem of perception. We are all for educating the work force as well as employers, and any work that RoSPA and other organisations can do in this field must be a good thing and welcome, but we worry about cuts in resourcing to the HSE because there will be a limit to what it can do, however good it is. The less money you have, the less you can put into proactive work because you have to stick to doing your statutory role over and above your advisory role.
Q893 Lindsay Roy: Should there not be an incentive for businesses which are proactive in seeking help?
Sarah Veale: Any incentivisation for people to behave well would be excellent. I would worry about the idea of "earned autonomy" where you say that a business with a very good record is exempt from bits of legislation as a general principle. That is all very well until the point at which it goes wrong, and it could encourage complacency. But there are other ways of ensuring through qualifications, accreditation and so on that people reach particular standards and are effectively assumed to be broadly compliant.
Adam Marshall: The first step in all of this is to ensure that the HSE is perceived throughout the business community as being there effectively to comply with the bedrock regulations out there and that people do not die or are seriously injured at work. We can then look at incentives and ways to build further upon that relationship. You want to reach those businesses that fear it is simply an enforcement mechanism and tell them they can ring up and ask for help. In many cases, with other types of regulators and regulation, where you can develop that virtuous relationship between the two sides, there is less enforcement because you see a constructive relationship building up over time.
Professor Löfstedt: The work on risk communication shows that, the more dialogue you have, the more trust you build. I would encourage more dialogue on this issue to build as much trust as possible between the regulators and the regulatees.
Q894 Lindsay Roy: What evidence do you have of the benefits of a shared culture, engagement and empowerment within a business or industry as opposed to a hierarchical top-down model?
Professor Löfstedt: We did not look at that per se. What I can say from evidence we received and the meetings we have had is that, if the CEO or managing director of a company shows leadership in health and safety from the very top, it percolates all the way down. We saw it again and again. I was encouraged. I talked to individuals about this. We should have health and safety leading from the top. Basically, it should be a CEO issue. Of course, it is in their interests to ensure that the work force is as safe as possible.
Sarah Veale: But I do think the work force can often educate CEOs about the real issues. With the greatest respect to CEOs, they often do not know what the shop floor problems are, whereas a good union safety rep will know back to front and inside out what the problem is and how it should be addressed.
Professor Löfstedt: It goes both ways. We need to have more dialogue on this.
Adam Marshall: We all want to have a zero accident culture at the end of the day.
Professor Löfstedt: It comes back to the issue of reputation. If there is a zero accident culture, those companies will be seen very favourably.
Q895 Lindsay Roy: If they are seen in that light, they reduce reputational risk.
Professor Löfstedt: Exactly, and that is what companies want to do.
Adam Marshall: I want to come back to the point Ragnar made earlier about reputational risk. I might not agree with him 100%. I believe that a lot of small companies are very conscious about reputation and the reputational risk they face because their custom depends on it, just as much as it does for some of the larger companies that could be named and shamed in the event of a breach. When you link reputation with positive engagement on health and safety matters, you create the kind of culture we want to see. Just as you have what are known as the 100 best employers in the country, you get self-created non-regulatory kite marks like the safest employers in the country and things like that which are very positive.
Q896 Lindsay Roy: Do we have the balance right between proactive and reactive roles?
Professor Löfstedt: We did not really focus on that per se in the review.
Sarah Veale: Again, it is both, is it not? You have to be capable of quick reaction, and you will not be able to do that if you are not proactively enforcing. I would have thought that in this context they are more or less inseparable.
Professor Löfstedt: They go hand in hand.
Q897 Lindsay Roy: Is there a tension there because of the cutback in resources?
Sarah Veale: Inevitably, yes.
Q898 Lindsay Roy: Is it less proactive and more reactive? Is that the way you think it is going?
Sarah Veale: It is early days, but certainly from the TUC’s point of view that would be a very big worry.
Professor Löfstedt: I think that kind of question should be posed to the HSE in the next session.
Q899 Lindsay Roy: What are the advantages of giving HSE power of direction over local authorities with regard to health and safety?
Professor Löfstedt: That is a very good question. I looked at it quite a bit. To be clear, my recommendation on this really makes explicit what already exists in practice and puts it on a formal footing so that local authorities can be monitored, and those least well performing can at least be challenged. It provides a crucial role here and basically a level playing field. In effect, we want to ensure that, say, a food company like Tesco operating in Southampton will have the same kinds of health and safety standards as someone in Edinburgh and Glasgow. What I see happening in the review is that companies, particularly in this harsh economic climate, need to have predictability, and in our view that comes from the Health and Safety Executive. That is its remit; it understands health and safety overall more than local authorities. I am not discounting the importance of localism or local knowledge, but, if HSE takes the lead on these issues, there will be a level playing field and it will ensure that we have more predictability in place.
Sarah Veale: I echo those points. For trade unions operating in local areas as much as they do nationally, consistency is a big issue. If you are trying to train people to be safety reps and to do an effective job, it is more difficult to do it if there is inconsistency in terms of application of the law. It comes back to the point made by Adam about the application of the regulations as much as about what they say on paper.
Adam Marshall: If there is not a problem, i.e. a business operating in Ayrshire and one in Dundee have the same standards applied to them and there is the same regulatory approach by the two local authorities, if it ain’t broke, don’t fix it. If, on the other hand, there are differential issues there, then there might be a role for the HSE or someone else to step in and try to make sure it is equalised.
Q900 Jim McGovern: We have heard a certain amount of concern about the time taken to investigate fatalities or major injuries. You can imagine the distress suffered by the family of anyone who has been injured at work, especially if it is a fatal injury. Professor Löfstedt, you have recommended that all those involved work together to commence health and safety prosecutions within three years. Three years sounds far too long to me. How can we speed up the process?
Professor Löfstedt: As I understand it, in Scotland there is a different set-up with regard to sorting out these types of issues. New prosecution arrangements were introduced into Scotland in 2009. I do not think this issue applies to Scotland, but I am more than happy to check. I suggest you also ask the HSE in the next session.
In reply to the question about the UK-wide position, you are right. We spoke to victims and victim groups. We visited sites and spoke to individuals who were grieving because they had lost loved ones. We spoke to industry and to others. In some cases there were horror stories. We heard about cases going back six or even seven years. In taking evidence on this, we thought that, rather than putting it into the legal framework, speeding up the process to something like three years would basically be the best way possible. That may still sound too long for you, Mr McGovern, but it is much better than six or seven years and a step in the right direction. It is something that I understand HSE is looking into quite seriously to ensure we do not go over the three-year limit.
Sarah Veale: I do not think we should be tempted into setting an arbitrary two or three-year limit or whatever, because that would encourage some defendants to delay the initiation of proceedings beyond that point and there would be mischief-making, but every other non-regulatory intervention, or further non-regulatory intervention, to speed things up would be absolutely essential. Something needs to be done about that. With Ragnar, I saw a group of relatives of people who had been fatally injured at work, and the distress caused by waiting and waiting is genuinely heart-breaking, so the human side of this must be borne in mind all the time.
Professor Löfstedt: It is heart-breaking. We owe it to them.
Q901 Jim McGovern: I am not suggesting a deadline.
Sarah Veale: I am aware of that.
Q902 Jim McGovern: I am saying that three years still sounds a bit too long to me.
Professor Löfstedt: That is a question you should direct to HSE and the Minister in the next session to see if they can speed it up even more than three years, but I thought that was much better than six or seven years in a couple of examples.
Q903 Jim McGovern: One year would be better than three.
Adam Marshall: I think Sarah is right. We have to be careful not to set arbitrary limits because we could end up with the law of unintended consequences-for example, things that should be prosecuted not being prosecuted because a limit has passed. However, the indescribable anguish of the families-to which I would add the not inconsiderable distress to the people involved in the business, both the employees and very often the managers involved in the business, where a fatal accident has occurred-is absolutely tremendous. In a lot of cases we have seen individuals end up off work because of stress after it happening and then they have to suffer a prosecution many years later, or they are forced to be witnesses many years later.
Q904 Jim McGovern: But they are still alive.
Adam Marshall: Yes, of course. Equally, the reputational impact is quite huge, so you have a system that is not working for anyone who has suffered because of a fatal accident at work, and that cannot be right.
Q905 Iain McKenzie: On the time scale, previous evidence to this Committee has thrown up questions on the volume of prosecutions. Many cases have not progressed as we would have expected to the point of being prosecuted, let alone quickly. How do you feel about the volume of cases being taken forward?
Professor Löfstedt: I cannot comment on the volume of cases.
Sarah Veale: To be deeply cynical, one of the problems is that anything that involves lawyers and the law becomes protracted because the meters start to run. I am afraid that sometimes both sides end up with a lot of interlocutory issues that take far longer than they should. Anything that can cut out all those fiddly bits and bureaucracy and introduce a penalty for unwarranted delay would be welcome, but this is really a question to ask the legal profession.
Professor Löfstedt: The volume of cases was outside our review.
Sarah Veale: That is quite true.
Adam Marshall: I have nothing to add.
Q906 Fiona Bruce: I want to ask about the self-employed and your recommendation about exemption from regulations. I know that for many self-employed people, particularly one-man bands, the burden placed on their viability by the regulations and red tape is a big one. I am very interested in exploring with you how those who pose no potential risk of harm to others could be exempt. How would it work in practice and who would decide which particular activities were exempt?
Professor Löfstedt: That is a big question. I can assure you that in the discussions we have had since the review the whole issue about the self-employed has come up a lot. To be clear, this is an emotive issue. The proposal simply puts into practice what is currently the situation. It applies only to those self-employed who do not employ anyone and whose work means that they do not pose a risk to others. An example would be a writer at home-for example, a novelist-or someone developing his or her website. HSE to date has not prosecuted any self-employed person in that position who injures him or herself. It hasn’t happened. I want to make very clear on the record that we are not exempting individuals who are working on a construction or agricultural site. We are talking about people working at home who do not harm others. With regard to exactly who that is, that discussion has been going on. It is a discussion that I think we should have with HSE and DWP. We need to ensure there is very clear guidance and definitions coming out from HSE as to which people fit into that category and which do not so that we are crystal clear on that.
Sarah Veale: It is a very good question in an enormously complex area. One of the big difficulties is that, when you are transposing European legislation, you have to write in self-employed in the UK and in some other member states, because categories of employment status here are immensely complex. Lots of people do not know if you ask them. The labour force survey always asks the individual. They often do not know whether they are an agency worker or self-employed. I am happy with the recommendation in the report which refers quite specifically to those who would not do harm to other people, but there is a big problem with bogus self-employment in construction. Some employers will sign people up on self-employed contracts, which are not illegal, but if we used too broad a definition they would be covered.
Professor Löfstedt: I want to go on record that we do not want construction workers to be part of the exemption because they can injure people. It is a question of definition.
Sarah Veale: I am slightly worried about the Government’s press release on this. It implied that 1 million self-employed people would be exempt. If you take out the bogus self-employment and literally stick to Professor Löfstedt’s definition, I cannot see how it would come to 1 million. But Ragnar is quite right that HSE and others have to look into this.
Adam Marshall: I do not think we should look at the self-employment category to the extent that the discussion has up to now. It is about risk and proportionality at the end of the day. The Professor’s recommendation was extraordinarily clear: it was about those engaged in low-risk occupations who did not employ anyone else and who cannot harm others. That is an incredibly important distinction to make. From the business perspective, especially the one-man bands that we have in chambers of commerce around the country, this is perceived as an issue. When you survey them, one in five say that health and safety itself, without going on to any other regulations, are either a total or near-total barrier to taking on a first employee. So there is also a growth impact to all of this. Sarah and I have had a number of conversations over the months. I do not agree with the characterisation "bogus selfemployment", but I agree very much with the notion that you do not want someone who is involved in a high-risk activity exempted from health and safety legislation. I think the Professor’s recommendation cuts a sensible path, and we have ended up in a place where those who are not going to pose a risk to others can get on with their business activities without fear of bureaucracy and regulation.
Professor Löfstedt: It is also the case in Germany and Sweden, which, as I am sure you are aware, already have high safety records.
Q907 Fiona Bruce: Professor, you talked about working at home. The distinction is not the location but the nature of the work. I am sorry to mention lawyers, Sarah.
Sarah Veale: No, that’s all right.
Q908 Fiona Bruce: For example, a barrister will work partly in chambers at his desk. He is self-employed and does not employ any staff; and then he will work partly at home at his desk. The nature of the work has not changed.
Adam Marshall: It is by employment, not location.
Professor Löfstedt: It is by employment.
Q909 Fiona Bruce: Is he wholly exempt?
Professor Löfstedt: According to my review, yes, that barrister would be wholly exempt.
Sarah Veale: But the worry is how all this is going to be done. We totally all support the recommendation, but it has to be worked out in legal terms. I would worry that, rather as you suggest, we could have the wrong people covered and unnecessarily or dangerously exempt some people who should not be, even if they are working at home, for example.
Q910 Fiona Bruce: But, as Mr Marshall has said, you do have to weigh up the balance. Generating the economy is very important.
Sarah Veale: Agreed.
Q911 Fiona Bruce: The fear of health and safety regulation is a very real one for the small employer who simply does not have the capacity to get to grips with it. You are seeking to strike a balance between these two competing needs.
Professor Löfstedt: That is what we are trying to do. We need to get almost an academic paper on this.
Adam Marshall: I will let you write that one.
Q912 Mike Freer: Turning to the impact of the EU, it is oft reported that we gold-plate regulations. I know that within the limitations of your review you did not look at that in any great depth. Do you take a view on whether there is any superficial evidence that we gold-plate and that makes Scotland and the UK less competitive than, say, our European partners?
Professor Löfstedt: There has been a lot of discussion on gold-plating both in our report on the UK and in the Netherlands. With regard to health and safety, we did not find much evidence of it, and in so doing we are supporting Lord Davidson’s review on that point. There was not much gold-plating. That said, to discuss the broader context of Europe, it is absolutely important that we in the UK engage with Europe in the setting of regulations to ensure that those coming out of Brussels are evidence-based, like this review with 262 footnotes, as well as science-based and risk-based as much as possible. We should be at the table at the early stage influencing the process. I am very happy about that in the sense that I persuaded Minister Grayling that we should launch the review not only in London on 28 November but in the European Parliament two days later on 30 November to show the importance of regulations coming out of Europe. We should be there at a much earlier stage. That is also a role Scotland should play in Brussels as much as possible.
Adam Marshall: The Professor is absolutely right on speed and getting in early in terms of agenda setting. I was in the unfortunate position very recently of being in Brussels, faced with two civil servants from the Luxembourg seat of the European Commission who were from the health and safety bits of that august organisation. One was from Italy and the other from Greece. They proceeded to give me an hour-long lecture about low compliance across the European Union. I had to interrupt them and say, "Hang on a second. The United Kingdom is a high compliance country. We have an excellent health and safety record and one that we always want to improve, but it is excellent. Tell me how the proposals that you are putting forward help a high compliance country like ours without swallowing us in further red tape." There was no clear answer. So, if we are not in early, we cannot prevent unintended consequences from additional rules that are intended to catch those countries whose record is not as good as ours.
Sarah Veale: I agree with that. Sometimes what is regarded as gold-plating has been asked for by employers and unions, and HSE is probably the body best placed to advise the Government on whether something needs to be added into the text to make it suit UK systems. We have this rather strange legal system compared with some other EU member states. What on paper can look like gold-plating is simply flexing an EU directive so that it works properly in the UK context. But, exactly as this report and the Davidson report said a couple of years ago, there is not any hard or serious evidence that the UK is gold-plating health and safety directives.
Adam Marshall: You and I agree on many things, but gold-plating is probably one on which we will never agree. The simple fact of the matter is that, in terms of the context of this review, gold-plating was not as much in evidence as it is, say, in employment law or other areas where businesses have a significant concern about the way European directives are transposed in this country.
Q913 Jim McGovern: I would like to go back to the previous question about health and safety and the definition of whether someone is an employee or is selfemployed. At the risk of sounding party political, back in the 1980s a large number of people in the construction industry, which is my background, were encouraged to become selfemployed via a 714 or SE60 certificate. They would leave the building site on a Friday and come back on the Monday wearing the same boiler suit and boots, using the same cement mixer and climbing the same scaffold, but they had gone from being an employee to being self-employed. That had devastating effects on that industry, in particular apprenticeships, but that is not the issue in point here. In terms of health and safety, would you confirm the position of those who work in the construction industry, whether they are on a 714 or SE60?
Professor Löfstedt: They will not be exempt.
Q914 Jim McGovern: They will not be exempt.
Professor Löfstedt: They will not be exempt. The recommendation from my review is that they would not be exempt.
Q915 Jim McGovern: It is all down to the definition of "worker", is it not?
Professor Löfstedt: Or working in an area of risk and causing risk to others. On a building site that individual will cause risk to others and therefore it is very clear that that person would not be exempt.
Q916 Jim McGovern: What about a risk to themselves?
Sarah Veale: That is a different issue.
Professor Löfstedt: That is a different issue.
Q917 Jim McGovern: I would think it is still health and safety.
Professor Löfstedt: In my view, we cannot police everybody. People still commit suicide. We can encourage people not to kill themselves and the like.
Q918 Jim McGovern: I do not think that a construction worker is on a building site to commit suicide.
Professor Löfstedt: Absolutely not, but we talked about that topic going forward and decided not to.
Adam Marshall: I think your recommendation is very clear. You say that anyone who is engaged in high-risk activities that can cause harm to others will not be exempt. I think that is the biggest single concern anyone would have for a regulatory system. You are the expert on risk. You cannot police for every conceivable risk in existence. I think this strikes an important balance between ensuring that the protections either stay the same or improve and a reasonable level of supervision.
Sarah Veale: I fully understand your worries. It could be a situation where a lone worker on a construction site is killed by faulty equipment, which could be the employer’s fault. Some of this has to be looked at very carefully.
Professor Löfstedt: It has to be looked at and investigated.
Q919 Jim McGovern: There are many different factors.
Sarah Veale: Yes.
Professor Löfstedt: We have to look at it carefully, and more research on this topic needs to be done.
Q920 Iain McKenzie: Indulge me, Chair, but I am intrigued by the suggestion that an employee working from home would somehow be exempt. Was that what you were implying?
Professor Löfstedt: If they do not pose risks to others. I go back to the barrister, accountant or consultant working from home who sits behind a computer writing a paper.
Q921 Iain McKenzie: But their employer would still have responsibility.
Professor Löfstedt: No; it is only the self-employed.
Adam Marshall: There is a separate issue about the responsibilities of the employer when they have remote workers. It was not one that was part of our recommendations.
Q922 Iain McKenzie: As long as it is self-employed.
Adam Marshall: Yes; it is just the self-employed.
Chair: Thank you for clarifying that.
Q923 Jim McGovern: Professor, your report seems to suggest that there is not a compensation culture in the UK.
Professor Löfstedt: There is not.
Q924 Jim McGovern: But it is one of the myths about health and safety that perpetuates and contributes to the sense of a burden. What more could be done to debunk such myths, if indeed it is a myth? I do not necessarily agree with that.
Professor Löfstedt: We found no evidence of a compensation culture. In my view, this goes back to the media. The media are trying to amplify these issues more and more, and it is something we should address to ensure that the media become once again better communicators and more evidence-based going forward to stop these myths popping up once in a while. It is really unfortunate.
Adam Marshall: I believe that there is a compensation culture in this country. The evidence which emerged in the review did not suggest that in the particular area we were investigating there was not. The thing that confronts my members most of the time is about employment law and some of the very strange things that have emerged from that area in terms of the compensation culture. That is our single biggest concern. There are some worries among employers that legalistic approaches to health and safety drive poor outcomes, but in the course of the review we did not see evidence of it.
Professor Löfstedt: Thank you, Adam.
Sarah Veale: It is a much wider issue. There is stuff going through Parliament at the moment on the Jackson review of personal injury claims and so on, which no doubt will make a difference, but I have never seen anyone produce any evidence that seriously shows that there is a compensation culture. I think it is made up by the media. It is a free country. If the Government want to stop lawyers from offering services that is fine, but they would have to start funding a very large legal aid bill. In a civilised country you want people to be able to access legal advice. If there is no legal aid-that is more or less the position now-you would have to have some sort of system that allows people to prosecute employers and other people who have harmed them. You will never get away from this, but I do not believe there is a culture. I do not believe that at all. Some people make claims that they should not make and it is stopped, but it is the newspapers that fan this one up all the time.
Q925 Jim McGovern: With your indulgence, Chair, if, anecdotally, I could give you the other side of the compensation culture, my background is in the construction industry. A friend of my family was tragically killed on a construction site in about 1997. His wife and family were awarded £250,000 compensation. He was on a 714, but the main contractor immediately declared itself bust and that family has never received a penny. There is another side to the compensation culture. To put a supplementary, do you support the Prime Minister’s proposal to cap the amount lawyers can earn from personal injury cases? If you do not support it, why not?
Professor Löfstedt: We have not really discussed that. That really was not part of the review.
Adam Marshall: If the Committee wanted additional evidence on that, I would be perfectly happy to speak to business members about their views on it. Some of the Prime Minister’s views in this area have been aired only recently, but there is a concern very much about the incentives on the legal profession, not just in this space but in a range of others, and those need careful treatment. I would not like to give a premature answer.
Q926 Chair: In your report you referred to evidence pointing out the effectiveness of involving staff but chose not to adopt the Swedish model of roving safety reps. What was the reason for that?
Professor Löfstedt: We looked into that quite a bit. Thank you for raising that question. One thing that came up, speaking to people in Westminster and elsewhere, was the issue of cost. We do not have the resource for doing so, but the idea is still a good one. We discounted it because of a resource issue.
Q927 Chair: Do any other countries have charging structures like cost recovery?
Professor Löfstedt: I think it is a question you should pose to HSE in the next session.
Q928 Lindsay Roy: We have spoken about myths and stereotypes. Not so long ago the Prime Minister said that the coalition had a clear new year resolution to kill off the health and safety culture for good. I take it you find that most unhelpful.
Professor Löfstedt: Yes. I have the Evening Standard article here and I was reading it this morning. That was an unfortunate headline. As you saw from the review, we feel that health and safety regulations in this country are fit for purpose. We only made a number of minor recommendations. We feel they are fit for purpose. However, if you look at the article by Mr Cameron in the Evening Standard, in a wider context it is a discussion not just about health and safety regulation, although unfortunately that gets the headlines, but the whole issue of better regulation. In the area of better regulation, we can be doing more things to simplify and clarify it and, to go back to the point I made earlier with regard to Brussels, so that at all times it is science-based, evidence-based and the like. In that sense I think we can all agree.
Q929 Lindsay Roy: No one would object to cutting out unnecessary bureaucracy and red tape.
Professor Löfstedt: Exactly; we cannot object to that. It was just unfortunate that the headline was about health and safety. Sarah, you must have strong views on that.
Sarah Veale: I am quite at liberty to say that I think it was very unhelpful. It is a great shame that the Government have just signed off an excellent piece of work that has the support of both sides of industry, with a number of recommendations that have to be worked through, but before we have even started the Prime Minister has jumped the gun by talking about health and safety.
Q930 Lindsay Roy: The reference to "the health and safety monster" is highly emotive language.
Sarah Veale: Exactly; it is horrible.
Professor Löfstedt: Those types of quotes are unfortunate.
Sarah Veale: I think they are more than unfortunate.
Professor Löfstedt: I speak as a neutral academic.
Q931 Mike Freer: How do we know that the Prime Minister actually wrote that headline? You are hanging the Prime Minister. That headline would probably have been written by the journalist.
Sarah Veale: He has not retracted it.
Chair: Time is running out. You may want to pursue that with the Minister in the next session.
Q932 Lindsay Roy: He is quoted as having said he wanted "to kill the health and safety monster".
Adam Marshall: I understand time is running out. All of us at this table want to see good health and safety outcomes in this country and to get rid of some of the media over-dramatisation that we see.
Professor Löfstedt: And the myths.
Adam Marshall: We also want to see some of the overly legalistic interpretations of health and safety and what it is out of the public discourse. If we can agree that we would like to kill those, perhaps health and safety itself is for another day.
Lindsay Roy: And over-emotive statements.
Sarah Veale: The Prime Minister’s statement did not help with regard to that, Adam.
Q933 Chair: I am afraid we have reached the end of our time. Just before we break, is there anything else that you particularly want to say to us?
Professor Löfstedt: The only final point from me is a very brief one. I sincerely hope that you support my recommendation that the House of Lords be invited to set up a Select Committee on risk, or establish a sub-committee of the Science and Technology Committee, to examine this issue and consider how to engage society in a discussion about risk. It is a crucial issue. It is important to have a discussion on risk at an early stage in schools, for example. I have been in this country since 1993, and in my time here I have given one talk in one school; that’s it. I am giving another talk tomorrow in my daughter’s school; it is the second one since 1993. I am more than happy, if you think it appropriate, to go to Scotland at some stage and give a talk on risk communication in one of your schools.
Adam Marshall: We may have to do a risk assessment and get a criminal records bureau check.
Chair: Thank you all very much. We much appreciate your coming along and giving your time this afternoon.
Examination of Witnesses
Witnesses: Chris Grayling MP, Minister of State for Employment, Department for Work and Pensions, Judith Hackitt, Chair, Health and Safety Executive, and Paul Stollard, Director Field Operations, Health and Safety Executive Scotland, gave evidence.
Q934 Chair: Thank you very much for coming along this afternoon. I am Alan Reid, Vice Chair of the Committee. The Chairman sends his apologies. His mother died at the weekend, so he is not able to be here this week. Perhaps you would start off by introducing yourselves.
Chris Grayling: Thank you, Mr Reid. We would all want to send our good wishes to the Chairman at a very difficult time for him. I am joined today by Judith Hackitt, who chairs the Health and Safety Executive, and by Paul Stollard, who runs the HSE in Scotland. It is a great pleasure to come and take questions from the Committee this afternoon. I hope we can have a fruitful session that will be valuable to you in putting together your report.
Q935 Chair: To start off with you, Minister, do you agree with Professor Löfstedt when he says that health and safety legislation can be good for business?
Chris Grayling: Absolutely. We are clear that good health and safety is absolutely vital for business. Health and safety is and should be all about preventing death, serious injury and long-term health problems in the workplace. That remains very much the objective of this Government. Across the whole of the United Kingdom we have the best record on health and safety in the workplace in Europe. We have no intention to take steps to undermine that, but we also have one of the worst records in Europe for unnecessary health and safety red tape. That is a record we definitely want to change. It is my belief that good health and safety is important to business and, in particular, we need to focus our attention on areas of business where there are significant risks. That is very much the philosophy that underpins the strategy we have pursued over the last 18 months.
But poor health and safety bureaucracy can also damage competitiveness, undermine business and discredit the health and safety regime at its core where it is really important. We are trying to rebuild a system that protects that core goal and record of low numbers relative to the rest of Europe-it is still too high-of deaths and serious injuries in the workplace, but also removes some of the things that get in the way of business without contributing to that objective.
Q936 Chair: Professor Löfstedt said that SMEs in particular feared health and safety regulation due to confusion and fear of being prosecuted. What are the Government doing to reduce that fear element among SMEs?
Chris Grayling: We have set out two blueprints for change. The first is the work done by Lord Young a year ago; the second is the work about which you have talked to Professor Löfstedt. The reason we commissioned the second piece of work from Professor Löfstedt was that Lord Young’s remit, while it touched upon issues that affected business, ran more broadly. For example, it looked at issues that affected schools and some of the issues in the criminal justice world. What we wanted Professor Löfstedt to do was build on that work but look particularly at the impact on business. We have already made some significant steps forward in changing the process for business. Some parts we have added to the recommendations of those two reports. For example, we are now refocusing our inspection efforts away from lower risk premises to those where there are high levels of risk in the workplace. We have introduced a number of simplifications for businesses. For example, for those running small shops-charity shops are a case in point that is quite often in the news-there is now a much simplified health and safety process. Instead of having to fill in a complex set of risk assessments, there is a very simple template you can use on the HSE website. I have used it myself. I logged in as a mystery charity shop visitor and went through it. It was very simple; it took me just a few minutes. So there is an effort around simplification.
But we are now moving full speed ahead with the implementation of some of Professor Löfstedt’s recommendations. This month we are launching the first consultation on the removal of some redundant or duplicating regulations. We have already introduced the first challenge panel for small businesses. If they have an inspection by a local authority that they think is treating them unjustly, there is an easy and quick port of call for an appeal. Pick up the phone or send an e-mail saying, "Is this really right?", and, if it’s not right, we can sort it out quickly. We have all had experiences of dumb decisions in the system. There is a whole variety of different measures. Our commitment is to implement in full the recommendations of both Lord Young and Professor Löfstedt, and we are moving ahead with those as quickly as we can.
Q937 Chair: Do you have any concrete evidence that complying with health and safety law in this country is making our business uncompetitive?
Chris Grayling: The big challenge and the complaint you hear most regularly is concern about personal injury claims, in the sense that something minor happens, somebody receives a minor injury, and a claim for £500 compensation for an employer turns into a legal bill of £5,000 or £10,000. One thing Lord Young recommended, with which the Prime Minister confirmed last week we were moving ahead, was extending the present system for compensation claims in road traffic accidents at the lower and not higher end of the scale. We are going to adopt the same principle for minor injury claims below £25,000. There is an agreed process and steps that lawyers, insurance companies and claimants need to go through, with fixed fees at each stage, so that there is no longer any question of an employer facing an unlimited claim at the end of it from a claimant’s lawyers that can turn what should be a relatively simple process into a very expensive one.
That is an example of where many businesses tell us they are extremely concerned. They find the current system very difficult. But there are also very onerous reporting requirements. If you look at the RIDDOR system for reporting accidents at work, we have a hugely complicated process. There is a 43-page form. They have to report anything that leads to somebody being off work for more than three days. We are making changes to that now. We are extending the three days to seven from 1 April, but, on the back of Professor Löfstedt’s recommendations, we are also going to look again at the whole RIDDOR framework. In Ireland, for example, they have literally just a page or two for the report; we have 43. For a small business or sole operator with a couple of employees, 43 pages mean it is time not being spent on the business. From our point of view, it is all about creating a simpler, more user-friendly system that takes some of the time and financial risk hassles out of the equation without creating a situation where people feel they can get away with it. Central to the philosophy is that we are not about letting off the bad guys but about removing bureaucracy from the good guys.
Q938 Chair: Do you agree with Professor Löfstedt that the UK does not gold-plate EU regulations in terms of the legislation but rather the implementation of the legislation?
Chris Grayling: One of the things we have looked for since taking office has been evidence of gold-plating. There is much less than popular wisdom would have you believe. There is too much European legislation. Sometimes that European legislation is misplaced. Another example of the system being too bureaucratic for business is that, if you were employed by a company and spent a day working at home, technically in European law your employer would have to make a risk assessment of your spare room, if that is where you happen to have your computer. That is plain daft. The HSE in this country has made it clear that we will not be pursuing such people except in very unusual circumstances. It depends on what you are doing. If you are doing engineering work in your shed it may be different, but for routine work at home this is not a priority for us. That is an example of legislation at European level that I would want to see removed.
Q939 Chair: But how does that make our industry uncompetitive if it is EU-wide? Do you have evidence that other EU countries are not following it?
Chris Grayling: But our industry is working in a competitive world. We are not dealing with just other EU countries; we also face competition from Asia and North America. If we place undue burdens on our business and a small business has to send someone round to do a risk assessment of an employee’s home before they can work at home, that is a cost their counterpart in the Far East will not have to incur. That is why these things are important.
Q940 Chair: What are you doing to work with the EU Commission to ensure better regulation coming from Europe?
Chris Grayling: We took Professor Löfstedt’s report-particularly the European dimension to it. He made a number of recommendations particularly in relation to impact assessments. We did a launch event in the European Parliament at which a number of representatives from the Parliament and the Commission were present. We presented his findings and recommendations. We will be actively engaged with the European institutions in the run-up to 2013 when the Commission is holding a major review of health and safety regulation. It is our clear goal to ensure that that is a deregulatory event. I wish I could be 100% confident that that will be the case.
One thing that is particularly pertinent to Scotland is that the unintended consequences of ill-thought-out regulation and regulatory changes for the Scottish economy can be, and indeed are, potentially very significant. At the moment, we are dealing with a proposal from Brussels on the offshore oil and gas exploration industry where the EU Commission is bringing forward new proposals on Europe-wide regulatory rules. They fully accept that we have a gold standard in this country. I think we have the best safety standards in gas and oil exploration anywhere in the world and other countries have lessons to learn from us. But this is not preventing them taking a regulatory approach that would require our North sea companies to rewrite all of their safety and training protocols effectively to meet the same standards but to do it in a form that is convenient to the Commission. I just think that is plain daft. It will add extra costs at a difficult time in the Scottish economy. One thing that I hope you will do as part of this report-certainly, my Department and the HSE will be very happy to furnish you with further information about that-is to look upon that as an example where ill-thought-out regulation that adds no value to safety at all will adversely affect the economics of a very important industrial sector for Scotland.
Q941 Iain McKenzie: As more businesses promote and encourage employees to work from home, do you think it is advisable to look at opting out, if I may term it that way, of making sure that the workplace in their home is safe and comes up to standard?
Chris Grayling: If somebody is sitting at a computer at home writing documents, doing presentations, writing e-mails, making telephone calls to clients or whatever, it is a nonsense to think that a risk assessment needs to be done. If somebody is setting up engineering work in their shed to do at home possibly that is different, but we need a sense of balance and proportion in all of this. I do not believe we should be carrying out safety assessments and making an employer duty-bound to carry out a safety assessment of an employee’s home.
Q942 Iain McKenzie: In that respect, claims for compensation that arise from adopting the wrong position while sitting in front of a computer and so on could have consequences in the future.
Chris Grayling: One of the most important parts of the approach recommended by Professor Löfstedt which we want to pursue is that there has to be a degree of responsibility on the part of the individual in all of this. Professor Löfstedt made the specific recommendation that we should remove from health and safety law the concept of strict liability, because, if an employer has done all he reasonably can do to prevent something bad from happening and it then happens, it should not automatically in law be his responsibility.
Q943 Iain McKenzie: What you are saying is that the employer should still have the duty and responsibility to advise on the correct procedures but not necessarily to go in and check.
Chris Grayling: Possibly.
Judith Hackitt: It is a matter of proportionate response. If someone is trusted to work from home, part of that trust that the employer places upon the individual is to behave sensibly, to have taken sensible precautions to ensure they are sitting properly at a desk and behaving like a sensible adult. Therefore, it does not need paperwork to make that happen. No one is saying the employee should not think, "I’m going to be sitting here for eight hours a days, so I need to do the proper thing", but it does not have to be subject to a formal visit and paperwork from the employer themselves.
Q944 Jim McGovern: I think there are regulations regarding reasonable breaks when you are working at a computer screen. If an employer imposes targets on an employee working at home and says, "You must achieve this in an eight-hour shift", and that does not allow for breaks, do you not agree that the employer is responsible for breaching the regulations?
Judith Hackitt: They are responsible in the same way that they are if it happens in the workplace. I would suggest that if you are working from home-my husband works from home, so I have practical experience of this-you are at greater liberty to manage your time.
Q945 Jim McGovern: Not if your employer imposes targets upon you, presumably.
Judith Hackitt: I disagree.
Jim McGovern: We disagree on that point then.
Mike Freer: I can help on that point, having been a former employee of Barclays in a sales environment which was heavily targeted. I worked from home and was far more productive working from home but had far more breaks than when I was in the office. I can assure you that it can be a much better environment in terms of being more relaxed and healthy than being strapped to a desk in Canary Wharf.
Q946 Jim McGovern: I am sure that is excellent and that in a number of cases, even the majority, that would probably apply, but it would be unfair to generalise and say that everybody enjoys that arrangement.
Judith Hackitt: That applies whether people are in a formal workplace or they are working from home.
Q947 Lindsay Roy: It is also the case that there are personal responsibilities in relation to health and safety.
Chris Grayling: That is the key point. At the end of the day, if an employer provides training and appropriate warning signs about what you should and should not do-for example, "Do not put your hand in here"-and then you do it, there has to be a degree of responsibility on the part of the employee. We want a system that is sensibly balanced. Of course, employers have a duty of care. The first core principle of the original Health and Safety at Work Act was that employers had a duty of care for their employees. That principle in many ways delivers the full framework of what the law requires, but it is not reasonable to expect the employer to carry responsibility if an individual acts in a grossly irresponsible way. We definitely want to see the law evolve in a way that stops the individual employer carrying strict liability in all circumstances where something goes wrong.
Q948 Mike Freer: I think the Minister has already accepted Professor Löfstedt’s proposals on the review of any revocation of various bits of legislation or regulations. Turning to the HSE, if those elements of the current regime are revoked and reviewed, are you content that that will not reduce the amount of protection for workers?
Judith Hackitt: Yes, we are. The original Act came into force in the 1970s. Subsequent to that, there have been a number of specific areas where further regulation has come in. As a result, we acknowledge that there is duplication of statements about requirements in different regulations. In part, that was referred to in the earlier evidence in the context of making it difficult for employers, particularly smaller ones, to navigate the system and understand what is required of them. Therefore, by revoking those regulations we will make it simpler and easier to navigate and for people to understand what is required, but we will not reduce the standards of protection.
Q949 Mike Freer: Do you have a view on the proposal to exempt self-employed people where there is no risk of harming others?
Judith Hackitt: We think it is an eminently sensible regulation. As Professor Löfstedt himself said, it reflects entirely the approach we take to investigation at the moment, which is that in cases where the person who has been harmed is employed by himself we do not pursue prosecutions in those cases today.
Q950 Mike Freer: Just to drill down on that, agriculture is a large part of the Scottish economy. If you are a self-employed farmer and you are exempt because you cannot harm anybody else-only he is at risk-there would be no change to the current legal protection or health and safety framework.
Judith Hackitt: There would not. However, there is no automatic assumption on our part certainly that this exemption would apply to agriculture. In very open situations it would be hard to identify an agricultural activity that did not pose risks to other people, whether it is members of that farmer’s family or members of the public. There are many ways in which they can and do create risks not only for themselves but for others.
Chris Grayling: That applies also very much to the construction industry where there is a lot of self-employment. If you are a self-employed person on a building site, you carry responsibility for health and safety as well, but, if you set up a teddy bear-stuffing business in your spare room and sell 25 teddy bears a week by mail order, the idea that you have to fill in risk assessments is nonsensical.
Q951 Fiona Bruce: Who is to decide where a self-employed person is carrying out work that does not pose a risk to others? One of the problems particularly in running a small business is fear of the unknown, is it not? Is this just going to be case law that takes years to develop, or will there be a clearer way that a self-employed person can understand whether or not he or she is exempt?
Judith Hackitt: We cannot wait for case law to demonstrate this. I agree that in order for people to have confidence to know whether they are in or out-whether they are exempt or not-it needs to be clarified. One of the actions that falls to us from the Löfstedt review, which we will be undertaking, is to produce clear guidance on how it will be applied and what it means in practice. I can promise you we will not leave it to people to work it out for themselves.
Q952 Iain McKenzie: How will any of the measures proposed by Professor Löfstedt or initiatives by the Government increase the level of reporting of major injuries in Scotland?
Chris Grayling: The rules about reporting major injuries will not change. There are two aspects to the changes in RIDDOR. The first is that we have formed the view-this was a recommendation originally from Lord Young-that an appropriate definition of a major accident for reporting purposes should be one where somebody is off work for a week or longer and absence from work of less than a week should not carry a reporting requirement. We have consulted on that change and it has been generally welcomed, and we intend to introduce it from 1 April. But Professor Löfstedt has highlighted that there are good precedents elsewhere for a RIDDOR-type system that is much simpler to operate. At the moment, the RIDDOR form is 43 pages long. I think it gives us the opportunity to look at precedents elsewhere. Ireland is a case in point, as Professor Löfstedt highlighted. If we can come up with a simpler mechanism for reporting accidents that result in more than a week off work so it is less time-consuming and onerous but does the job, we should do that. That is certainly our intention.
Q953 Lindsay Roy: To what extent is the Health and Safety Executive approachable by business and industry, and how do you know?
Paul Stollard: We are approached a lot by industries in Scotland through representative organisations like the NFU or Federation of Small Businesses or by individual companies. I receive a lot of e-mails on a daily basis. Clearly, we are keen to develop that as much as we can. We are reviewing our website and trying to make it more accessible because we find that is the best way businesses like to contact an organisation. We will also work with cross-industry groups to develop things for them. When I appeared before this Committee in the past, we discussed with you the work of SHAD and the way we went out deliberately to a high-risk industry such as agriculture and tried to take the message to them. We do that with other industries as well-for example, those dealing with specific types of construction.
Q954 Lindsay Roy: Communication is very important. When we spoke to Professor Löfstedt he talked about simplifying language and developing websites. Are there any other things HSE can do to facilitate it-for example, removing red tape and unnecessary bureaucracy?
Paul Stollard: The Minister has already mentioned the fact that we have produced on our website quite a lot of easy-to-use self-assessment documents or risk assessments which will help very small businesses. The example quoted was the charity shop, but there are others as well. Small workplaces can have things that are designed to be used within half an hour or 25 minutes, so businesses know this is not a frightening thing for which they have to employ a consultant but they can do it themselves. When I go out with an inspector occasionally, I am proudly shown by the director of a company its health and safety documentation bought from a consultant. It is quite depressing because it is in neat binders that have never been opened, and yet I am told, "But I paid £10,000 for this." We say, "You didn’t need to do that. Most of it is on our website. We could have helped you with our advisers." We are keen to encourage people to talk to us and use the material we have because, often, it can save industry money.
Chris Grayling: At the moment one of the things we are looking at actively, off the back of the Löfstedt report, is how we communicate these changes. It is a challenge, because getting to three, four or five million businesses out there is not an easy task, but I have a team of people looking at how best we build communication. We have two stories to tell, one in relation to our desire to get businesses across the UK involved in, for example, the work experience scheme, and, alongside that, a desire to communicate changes in the regulations. We are looking at how we can build a holistic approach to communication with businesses.
Q955 Lindsay Roy: Do you have a role in sharing good practice where you identify, for example, RoSPA and health and safety awards, and where there is exemplary practice that can be disseminated elsewhere?
Paul Stollard: Yes. One of the things we are very keen to use is supply chains so that big employers and purchasers pass on the message which, quite often, they have adopted within their organisations and make it part of the tender process down the supply chain.
Q956 Lindsay Roy: Is that in terms of quality standards?
Paul Stollard: It can be quality standards. We had a very successful process about health issues at work. Sometimes health can be a bit of a Cinderella compared with safety. We have produced very good documentation. We have over 100 what we call champions within companies who push that down. Often, the health and safety advisers in big companies push that down through their supply chains so that people who come to them to work or are tendering accept that quality of work to get the work.
Judith Hackitt: We also facilitate a lot of this activity ourselves. Members of HSE staff and the board frequently participate in selection panels in those award processes for RoSPA, IOSH and others. We have been known to nominate for awards some people for particularly good practice we have seen, and we also facilitate sharing between businesses. We believe it is part of our role to ensure that, where we encounter good practice, it is made known to other people. Equally, when we come across things that concern us and that we think others need to be made aware of, we can activate a safety alert system that will pass out those messages to business and push them down the supply chain so that we ensure knowledge is shared quickly.
Q957 Lindsay Roy: Are you proactive in dispelling myths? One of the things Professor Löfstedt said earlier was that sometimes the situation is compounded by spreading myths and rumours that this, that or the next thing had happened when it is not the case.
Paul Stollard: I have become quite a serial correspondent with The Scotsman and the Herald just because there are so many things that irritate me as I read them over breakfast in the morning. I will go back and challenge them. They said that sword dancing was banned at highland games. We have never tried to do that. They suggested that fancy dress parades should be stopped in Peebles. Those sorts of things we are not doing, and we will challenge those where we see them.
Judith Hackitt: And we will continue to do so. The Minister mentioned earlier that the first challenge panel that we concluded was required as a result of the Löfstedt review to challenge silly or over-zealous regulatory decisions was already up and running. The second challenge panel, which will be up and running very soon, is being put in place for precisely that reason so that people can identify silly stories of a non-regulatory nature and for us very quickly to rebut them and make that a very public process.
Chris Grayling: Often, health and safety is used as an excuse for a lazy decision. If something is a bit of a hassle, it is very easy to say that you cannot do it for health and safety reasons. Poor judgment or laziness, often by middle-ranking officials or managers in companies, leads to some of the daft stories we hear. We make no apologies for naming and shaming some of the worst offenders, because the message we want to get out is that, more often than not, these things are not based on health and safety law, so don’t take them as gospel.
Q958 Lindsay Roy: The acid question is this. Apparently the Prime Minister has said he wants to kill off the health and safety culture for good. I do not know what your interpretation of that is.
Chris Grayling: He does not mean the core purpose of health and safety that I described at the start but the kind of mythology that has built up around health and safety.
Q959 Lindsay Roy: And the bureaucracy.
Chris Grayling: And the bureaucracy. Genuine health and safety is really important for individual employees and for business. We are as determined as any previous Government to maintain those standards of high quality, but we are concerned by the stuff that goes around it, such as the daft bureacracy. Until we addressed it last summer, it used to be the case that the risk assessment you needed to fill in to organise a school trip was about 120 pages long. It is now eight. That is an example of the kind of thing that brought the system into disrepute and which, step by step, we are trying to kill off. We hope we end up with a sensible regime, people can see and understand what it is there for, it commands people’s confidence, where the tag "health and safety" is not used for trivial excuses, and where health and safety does what it is really about.
Q960 Lindsay Roy: Are you happy that Löfstedt has dealt with the core and the periphery has all been removed?
Chris Grayling: The message from Professor Löfstedt is that the core is really important, the legislation is important, but the way that a lot of what is being done and the stuff that surrounds that core is often unnecessary and over-bureaucratic, and that is what we are looking to change.
Q961 Iain McKenzie: I am interested in pushing back down the supply chain with terms and conditions, almost an accreditation into health and safety, much as we have seen businesses do in the past with quality. If you were putting that in your terms and conditions of business, what would you accept as evidence that you were accredited to the standard you had brought in, apart from paying £10,000 for handsomely-bound documents you had paid for?
Paul Stollard: It is not an accreditation as such with a kite mark. It is that the organisations that are going to be tendering have good health and safety policies and clear training programmes and they are employing good staff. One of the initiatives in a high-risk area for us at the moment is waste and recycling. If local authorities are to use private companies to do waste and recycling, they should be imposing on them the same sorts of conditions and requirements that they would require of their own staff. We have been talking to local authorities across Scotland to ensure that they are doing that through their processes. It is not just that you have a particular badge but that there is a clear line of those sorts of things-the policies, training and recruitment of staff.
Q962 Iain McKenzie: How would they display that?
Paul Stollard: It is up to the people who are tendering for that work to convince us they have done that. That is quite commonly coming into contracts that we are now seeing and pre-qualification questionnaires that are going out. It is very big in the construction industry also for pre-qualification questionnaires. I think Professor Löfstedt mentioned reputation in his evidence to you earlier. We find that so important for companies. They cannot afford to allow their reputation to be damaged. If our inspectors go in and say, "This isn’t good enough", companies will react very quickly because they do not want prohibition or improvement notices served on them because then they go on our database. Almost all companies employing people are checking our database to find out whether notices have been served. That is a very significant influencer.
Judith Hackitt: This is not new. Having worked in industry in the private sector for almost 30 years before I became chair of HSE, companies with good practices have for many years viewed the health and safety performance of suppliers, indeed in some cases their customers, as an integral part of the way they choose who they will or will not do business with. This is about making the practice much more widespread. As Paul said, it is handled through initial questionnaires, terms of contract and performance requirements placed on people at the time of contract; it is handled as an integral part of doing business in many organisations already.
Q963 Jim McGovern: Chris, when you say you are trying to lessen bureaucracy for the good guys, are you entirely confident-I would probably ask Judith the same question-that working people will remain as safe, in good health and have their welfare looked after as is currently the position?
Chris Grayling: One of the decisions we took just under a year ago was to stop proactive inspections of low-risk premises. The truth was that we were inspecting businesses that were relatively low risk in nature, vets’ surgeries being a case in point. Typically, they had an inspection once every eight years or so.
Q964 Jim McGovern: I am sure a vet’s surgery could be quite risky with dog bites and so on.
Chris Grayling: You have a vet’s surgery getting a visit once every eight years, and yet what we have out there-these guys show me the photographs-is some really poor practice among employers where there is a genuine, clear and immediate risk to life and limb. In times when there is not a lot of money in the system, would you prefer the inspection resources and inspectors that we have to be concentrating their efforts on investigating properly and tackling the bad guys who are creating the clear and present risk, or would you rather they spent half a day visiting a vet’s surgery where there was no previous record of problems and the practice was regarded as responsible? I just think that the former is a much better way of providing protection than the latter.
Judith Hackitt: We have a wealth of experience and information that now better enables us to target where we place our resources. Information systems and the technology available to us now enable us to be much more effective in targeting those businesses where we ought to be spending our time. Equally, we have good information on where inspection is the most effective. As we have already discussed, agriculture is one of those areas where our belief is that, no matter how many inspections we did, because of the very dispersed nature of agriculture, that is not the best way to tackle changing the culture in the agriculture industry. We need to do that with the whole industry via collective health and safety awareness-raising days, by using a range of interventions and targeting our activities in the areas where it will have most effect. We are confident that we can change our approach in the way we are doing and maintain our health and safety performance, but it is not something we will take for granted. We will monitor the impact of all the changes we are making very carefully.
Q965 Jim McGovern: Chris, you mentioned earlier some crazy stories and the amount of paperwork that has to be done for a school trip. I would not hold that up as a perfect example of a crazy story, but I have read some crazy stories in the press over a number of years about health and safety. I would hope that the Government just now are not giving these crazy stories a high profile to justify removing regulation that should be there to protect workers.
Chris Grayling: We do not have to try. I open the papers each morning and find yet another story about something that brings health and safety into disrepute. The truth is that, first, we do not want the concept of health and safety having its reputation destroyed by silly stories. That is why Judith, Paul and the team push back wherever they can. But we also want regulation-this does not apply just to health and safety but the way this country regulates-that is simple, straightforward, understandable and does not mean that for small businesses, which can often mean one or two people, form-filling involves more paperwork on a Sunday night. We do not want that to happen unless it is absolutely necessary, and often it happens in a way that is not absolutely necessary.
Q966 Jim McGovern: On the same subject about high, medium and low risk, I am intrigued about who the stakeholders are. Are they in broad agreement about whether they are high, medium or low risk?
Paul Stollard: The highest risks in Scotland are construction, agriculture and waste and recycling. The people involved in them recognise that, whether it is the Site Safe Scotland initiatives, the NFU in Scotland, or the local authorities that are mainly leading on waste and recycling. Those representative bodies are well aligned to that. With the exception of agriculture, where Judith has just said there is no point in spending a lot of time on random visits to farms, they are very supportive of the fact we are going in to inspect unannounced. Very often, particularly in construction we have regular major campaigns that pull in lots of extra staff just to study refurbishment, asbestos or particular construction risks. I think stakeholders do buy into that.
There are other specific work activities which can vary between high and medium risk depending on the information we receive. We will always respond to the complaints we receive and the RIDDORs we get which identify particularly bad performers. You can get a medium risk business which is such a bad performer that it moves itself up and it then becomes a target for us to intervene. We look very closely at that sort of intelligence-gathering material.
Q967 Jim McGovern: Are you quite confident that the priorities for health and safety in Scotland will be protected by this change-by this new regime?
Paul Stollard: Absolutely, and it reflects what we were moving towards anyway. It helps to clarify it for people and to be certain that we are concentrating on those areas where we are likely to make the biggest impact and where unannounced inspection is likely to have the most salutary effect on the overall level of safety.
Q968 Jim McGovern: You described earlier how an employer could possibly move from medium to high risk. What data do you use to decide what reports to investigate when it seems to be accepted that there is under-reporting of major injuries of about 50%?
Paul Stollard: We get between 1,000 and 1,500 complaints a year in Scotland coming in by phone, e-mail or fax. We look at every one of those complaints. For those which are of sufficiently high risk we will send out an inspector within 24 hours. I have five or six staff that just triage those and identify the ones for immediate action. That is a continuous, ongoing process. Some of those are, in the extreme cases, mendacious and should not be investigated, but there are those that do require action, and we will take it. If it is a scaffold which clearly has not been put up right, we will have a construction inspector there almost as fast as they can drive, because that is something on which you need to act quickly.
Q969 Jim McGovern: I imagine you would agree that trade union health and safety reps have a major part to play in all of this.
Paul Stollard: Certainly, and we have evidence that, whether it is a trade union or nontrade union, if there is a health and safety worker representative in the business there generally tends to be a better safety record. In triaging complaints that we receive, if the complaint comes from someone who is the health and safety rep, it is likely to be taken a lot more seriously than if it is from someone who has been dismissed from the company.
Jim McGovern: I understand.
Q970 Chair: Is the relationship between the HSE and Crown Office Procurator Fiscal Service as effective and efficient as you would like it to be?
Paul Stollard: You are always trying to improve, but, yes, since they set up their new unit we have seen dramatic improvements. I have a very good working relationship, I believe, with the people who gave evidence to you before Christmas.
Q971 Chair: Are you satisfied that they are taking forward for prosecution as many cases as you would like?
Paul Stollard: Yes. Every case we put forward to them they look at very seriously. They often talk to us before the case is formally put to them. Right from the start of the new unit I was very keen to invite them to use desks in our offices. In our three major offices in Scotland they have desks. Their fiscals come in, work there for a day a week, and therefore they are immediately available to assist our inspectors with casual information and advice during the process to speed it up. I am certain that any case we put forward for them is looked at extremely carefully. One thing the new unit has done is to move entirely to taking cases on indictment rather than summary procedure. That requires us to produce more evidence, because a higher standard and quality of evidence needs to be secured, but it means that the scale of fines available to the sheriff or judge who is dealing with that case is much greater. We have seen a steady increase in the financial penalties imposed where convictions have been obtained. It is a tribute to the thoroughness of the new unit that, of the cases they have brought and that have been concluded, 77 of the 78 are convictions.
Q972 Chair: A suggestion was put to us that they were only taking the easy cases. What is your response to that suggestion?
Paul Stollard: I am absolutely certain that is not true. They are taking the cases that we put to them; we do not take them. We choose our investigations on a number of criteria. We investigate every fatality and a large number of major injuries. We investigate if members of the public are involved, the degree of injury and if there is any attempt to obstruct us. There are all sorts of factors. We do not pick the easy ones. Sometimes it takes longer because you are picking complex ones with multiple duty holders or occasionally defendants who are deliberately obstructive, which can slow down the process.
Q973 Chair: We have heard considerable concern about the time taken to investigate fatalities or major injuries and to bring prosecutions or initiate a fatal accident inquiry. Professor Löfstedt was similarly concerned about the time taken to commence some prosecutions. What can be done to speed up the process and reduce the time that the family waits for an outcome?
Paul Stollard: I cannot really talk about fatal accident inquiries as they lie entirely within the jurisdiction of the COPFS. As to the time during which the case lies with ourselves, looking back, of the 79 cases we have taken and that have been heard since April 2009, only 11 were with us for more than a year; in other words, HSE was investigating in 85% of the cases for less than a year, and many of those are less than six months. There are delays in the process and we will carry on trying to reduce them, but I do not think it is reasonable to say there is an overdue process as far as concerns HSE.
Q974 Fiona Bruce: Mr Stollard, what evidence do you have of companies closing down to avoid prosecution?
Paul Stollard: It does happen. On occasion, I can think of where we have applied to ensure that a company cannot close down so that legally it still remains in existence. It may have no assets but it may be necessary to be able to complete a process against it, and we have had discussions with the COPFS to do that. Yes, it does happen. Whether it has any assets is a slightly different matter.
Q975 Fiona Bruce: What about tracing directors who then set up another company?
Paul Stollard: That is precisely why we were keen it could not just close down in that particular case. We wanted to be absolutely certain that it was still a legal entity, it could be pursued and a judgment obtained against it.
Q976 Fiona Bruce: That was one case that you pursued, but generally you would not take action.
Paul Stollard: We might do. I am saying it has to be very specific, and it would not be ourselves who did it; it would be the COPFS, but we would certainly be involved in discussions with them.
Q977 Fiona Bruce: I am interested because the Crown Office and Procurator Fiscal Service told us that you monitored companies to make sure they do not cease trading to avoid prosecution and then reappear under another name. Is that perhaps not correct?
Paul Stollard: I am sorry; we do. We have target intelligence officers who look to see who the directors of companies are so that, if companies do reappear and they have a bad safety record already, we can spot them and who their directors are as we might wish to visit them.
Q978 Jim McGovern: Chris, possibly I am going to put you on the spot. I mentioned to the witnesses who gave evidence earlier that a constituent who was a family friend of mine had been killed on a construction site, and subsequently a court said that his wife and children should receive £250,000 compensation. The firm immediately declared itself bust. The man who owned the firm is still living in the lap of luxury in Dundee and all his businesses are now in his wife’s name. I put this point to Tony Blair some years ago at PMQs. If we have a pension protection fund so that when a firm goes bust people’s pensions are still protected, can we not do something similar for people who have lost a loved one so that if an employer, through negligence, has cost someone their life the compensation awarded should still be paid? The people I am speaking about have never received a penny in compensation.
Chris Grayling: The system should provide for that at the very least through employer’s liability insurance. One piece of work that is being done involves a number of employees, particularly those who find they have long-term health conditions as a result of being exposed to something many years ago. They have found in trying to seek redress that their previous employer has disappeared, there is nothing on record and they cannot do anything about it. The insurance industry is now working quite closely with government to try to build a proper register of past policies so that claims can be made even several years later. It is a legal requirement for any employer to have employer’s liability insurance. I am surprised in that case they were not able to seek redress through that means. It is certainly illegal for them not to do that.
Chair: I see that the Minister is on her feet, so we will need to rush through if we want to be there.
Q979 Jim McGovern: Without going into it in too much detail, the person was on a 714 certificate and self-employed. The main contractor denied all liability so there is an argument between the solicitors, but ultimately the family was left with no compensation whatsoever.
Judith Hackitt: I listened to that earlier conversation. There has been a major change to regulation in the construction industry since the time you referred to in the form of the Construction, Design and Management Regulations with regard to people who are self-employed. We understand the complexity of the employment systems in construction. They are now covered pretty comprehensively through the way in which different people’s roles and responsibilities are described in those Construction, Design and Management Regulations.
Q980 Jim McGovern: I am glad to hear that. It probably will not help my constituent, but for the future it will.
Judith Hackitt: Sadly, no, but it could hopefully prevent a similar situation arising in the future.
Jim McGovern: Certainly.
Q981 Chair: A lot of our witnesses have raised concerns about the reduction in investigations of major industries and the impact that would have as a deterrent on the number of cases leading to prosecution. When we took evidence in June, David Ashton said that he wanted to investigate all major accidents reported to the HSE that met the selection criteria. Have you been able to do that?
Chris Grayling: I am not aware that any steps we have taken over the last 18 months would have led to a reduction in the number of investigations of major accidents.
Paul Stollard: I can give the Committee the assurance that, as far as I know, we have not failed to investigate any that meet our selection criteria because of lack of resources.
Q982 Chair: You said as far as you know. Could you clarify it and perhaps drop us a note?
Paul Stollard: We will certainly clarify that for you. What I mean by that is that occasionally there are ones we cannot do because machinery has been taken out of the country, or very strange things like that, but we certainly do not fail to investigate those that meet our criteria because of lack of resources.
Q983 Chair: Perhaps you would drop us a note to clarify it.
Paul Stollard: We will provide something to you.
Q984 Chair: Has your ability to investigate major injuries been constrained by the reduction in resources at all?
Paul Stollard: We have not seen a reduction in the number of inspectors in the last three years. As to the number of front-line inspectors in Scotland, last year there were 167; this year it is 165; and the projection for next year is 164.
Q985 Chair: How many work-related fatalities have there been in Scotland so far in 2011-12?
Paul Stollard: I would be loth to give that figure, if you do not mind, because there are many where the investigation is ongoing and we are not certain whether it is suicide or natural causes. In the last year for which we have figures, 2010-11, there were 15; and in 2009-10 there were 23. We were pleased to see a reduction by almost a third, but because it is bound to fluctuate year on year I would not wish to draw too much from that.
Q986 Chair: What is the long-term trend?
Paul Stollard: Over the period 2005-06 to 2008-09 it was 30 per annum. In 2009-10 it went down to 23, and in 2010-11 it went down to 15. So it is certainly better than the 30 per annum, and I hope we can continue that reduction.
Q987 Chair: What work have you done with NFUS to try to improve data collection in relation to farming accidents that present themselves to hospitals?
Paul Stollard: I do not think we have in terms of farming accidents that present themselves to hospitals. With the appointment of the new NFUS chief executive, I had a meeting with him and one of the vice-presidents at the beginning of December looking at initiatives we could take with the agricultural industry into the new year. We talked about three or four new things that we would do together. I also encouraged him and members to report major accidents to us. One of their particular concerns was belly-clipping incidents where farmers were being kicked, and one of their major concerns was ear-tagging. I was offering to take information, if they just wanted to give figures, without knowing the name of the farm. We would take anonymised stuff if they were just minor injuries because we were keen to know whether or not belly-clipping was a significant problem.
Judith Hackitt: One of our advantages in terms of access to data in the agriculture industry in England and Wales, as well as Scotland, is that it is much easier to access one or two insurers, because most farmers tend to use the same one. One of the advantages we are putting to good use is establishing good dialogue between ourselves and the insurers in the agriculture sector, because they have very good data.
Q988 Chair: How will you ensure that cost recovery will be applied fairly and consistently, and will a target be set for income to be raised through cost recovery?
Chris Grayling: A target is not being set. Our objective is to make sure-this is an absolutely clear instruction that has been given to the HSE-we recover costs in cases where there has been a material breach. It is not about recovering costs for trivialities. It is about penalising the bad guys who gain competitive advantage from cutting corners in a way that endangers life and limb. An appeals mechanism will be set up by the HSE, but, above all, it is clear guidance from the HSE leadership team, with an instruction from Ministers to make sure we are absolutely clear about when this applies and when it does not. If there is any suggestion that the HSE is applying it to trivialities, we will come down on it like a ton of bricks.
Q989 Chair: How can you ensure the same level of service if HSE income becomes unpredictable because it is dependent on cost recovery for income?
Chris Grayling: I do not think it will. Cost recovery is not going into local pots; it is not something that pays for the individual inspector and the individual local office; it is going into a central UK pot, not just a Scottish one. I do not think there will be any impact on the level of service in an individual locality.
Q990 Chair: Those are all our questions. Is there anything else you want to add that we have not given you the opportunity to respond to?
Chris Grayling: I do not think so. We wish you well with your report.
Chair: Thank you very much.