Originally published 2005 in Labour Research, 93, (10), October, 14-17.

Revitalising Health and Safety?

In 2000, amid great fanfare, the Government launched Revitalising Health and Safety, a wide-ranging, ten-year strategy for improving safety and health at work. At its launch, John Prescott urged that it was “time to give a new impetus to health and safety at work. Too many deaths still occur at work. Each death or serious injury in the workplace is a tragedy; a tragedy that causes devastation for workers, their families and loved ones; a tragedy which, perhaps, could have been avoided”. If the need to re-examine the system of safety and health regulation was widely recognised at the time, what has followed this strategy launch has been disappointing, to say the least: like many of New Labour’s seemingly progressive initiatives, style (the announcement) has triumphed over substance (the ensuing reality).

Indeed, a recent analysis by the Institute of Employment Rights of actions that have followed from the launch of the strategy concluded that:

we see that not only have no discernible improvements been identified, but that there are signs that trends with regard to new cases of occupational ill-health and the number of working days lost as a result of work-related harm seem to have got worse (James and Walters, 2004: 28)

This conclusion was widely echoed in the recent (July) Department of Work and Pensions Select Committee Report into the work of the HSE.

The Revitalising strategy had set out from the premise “that the framework of health and safety law was essentially adequate”, and adopted a “relatively limited reform agenda” (James and Walters, 2004: 10), notably in terms of legal reform. Perhaps eight, possibly ten according to James and Walters, of the 44 proposed actions concerned the “making, or possible making, of changes to legal duties and the way in which they are enforced” (James and Walters, 2004: 12). Assessing the progress of these proposed legal changes, James and Walters found that, “none of the potential areas of legal reform flagged up in the revitalising strategy document have so far been implemented” (James and Walters, 2004: 18). [see Box] What we find commonly is that matters are still under consideration, or legislation has been eschewed in favour of the use of advice, education, research and publicity. Little wonder the Select Committee recommended that “commitments to legislate made.. [in Revitalising].. should be honoured by a Government Bill in the next session of parliament” (HoC WPC, 2004: para 55).

Revitalising Action Point	In(A)ction?
Early legislative action be taken to provide courts with greater sentencing powers	No legislative proposals, a failed Private Members Bill, and unfulfilled promise of a New ‘Safety Bill’
HSC advise ministers on the feasibility of more innovative penalties for health and safety offences	No legislative proposals, a failed Private Members Bill, ministers ‘considering way forward’
Crown Immunity from statutory health and safety enforcement to be removed	No legislative proposals, still under consideration with respect to corporate killing proposal
Government to consider amending the Health and Safety at Work Act to enable private prosecutions in England and Wales without the consent of the DPP	No legislative proposals, but ‘still being considered’
A code of practice on Directors’ responsibilities for health and safety to be developed, then to be placed on a statutory footing	A voluntary code has been introduced, though it has been decided that this will not be placed on any legal footing; future emphasis now on publicity and conferences
Consideration of extending the HSWAct to all workers regardless of employment status	Ministers ‘considering best way forward’
A fundamental review of reporting regulations	HSE has prepared a discussion document and established a working group in 2004 to ‘take forward’ this review
Removing restrictions on disclosure of health and safety information	Work ‘ongoing’, including public consultation

Adapted from James and Walters, 2004, HoC WPC, 2004 and HSC/HSE, 2004.

Safety at Work on the Back Burner?

Far from looking like moving ahead on regulation, then, Government seems set on a path of limiting legislative change. This is only one index of what has been its general attitude to this vital area of protection for working men and women. Other indicators abound. The long awaited law on corporate killing, first proposed by the Law Commission in 1996, has not materialised, and there is still no timetable for any such Bill.

Another indicator is the lack of political leadership in this area. When, this Spring, Jane Kennedy became the fifth minister responsible for safety and health at work in four years, and the seventh since Labour came to power, unions, safety campaigners, RoSPA, even the Institute of Directors bemoaned the lack of ministerial continuity, prompting the hardly radical Institution of Occupational Safety and Health to note how this game of “pass the safety parcel” “begs the question of how seriously the government takes safety, when it still hasn’t delivered on its manifesto commitments”.

A final indicator of a Government lacing commitment is to be found in the familiar issue of resources for the HSE. After increases in funding for front-line inspectors - meaning that by 2001 the ‘average’ workplace could except a visit once every 15-20 years - in 2002, according to HSE, the financial climate had “changed”. Subsequent reductions in funding - amounting to, according to HSE, “a significant reduction in spending power” - have raised this spectre of financial crisis in health and safety enforcement.

A New Enforcement Strategy?

The HSE inspectors union, PROPSECT, has lobbied hard for extra resources - indeed, the Select Committee has “endorsed” its argument, recommending a doubling of field inspectors (HoC WPC recommendation 9). HSE will, then, work within the new financial constraints, committing itself to “a financial strategy of efficiencies and cost reductions”. And this supine response is the context for recent changes within HSE enforcement practices, indicated by policy and strategy statements which represent what has been termed a “further down playing” of “regulatory solutions” (HoC WPC, 2004: para 54).

For example, in May 2004, it was revealed that certain deaths and injuries to members of the public, which hitherto had been investigated by the HSE, will no longer be subject to such inquiry. This new, restrictive policy was set out in internal guidance to inspectors and had been operational from October 2003, and its rationale was clearly a resource driven one. Subsequently, the policy was subject to successful legal challenge by the Centre for Corporate Accountability, found to be ultra vires, and is likely to be reconsidered by HSE.

More strategically, HSC’s recently (2004) launched Strategy for Workplace Health and Safety in Great Britain to 2010 and Beyond - though a bland document of very little substance - further downplays formal enforcement, dedicating two paragraphs of its 17 pages to this issue. This is one index of what appears to be a radical shift in HSE enforcement practice. Never a body known for over-zealous use of law, this shift coheres with a recent discussion paper by HSE’s Deputy Director-General, Justin McCracken, urging a shift of emphasis to “educate and influence”, so “using a smaller proportion of [the HSE’s] total front line resource for the inspection and enforcement aspects of [HSE’s] work”. This ‘significant shift of emphasis’ is justified on the basis of:

a belief (and we agree that at present our evaluation of the effectiveness of different approaches and techniques is not sufficiently well developed to allow it to be more than this) that by altering the balance in this way will help us to climb off the current plateau in safety performance and to tackle increases in ill health (HoC WPC, 2004: para 131)

McCracken is right to acknowledge that there is no evidence indicating that such a shift would have a positive effect on occupational health and safety outcomes. Indeed, this line of thinking on enforcement seems designed to accommodate reductions in resources, not one aimed at making the HSE more effective.

“Joined-Up” Policy: what works?

July’s Select Committee - whilst producing a list of recommendations that closely resemble the first page of a shopping list of workers’ demands - also added the recommendation that “the HSE should not proceed with the proposal to shift resources from inspection and enforcement to fund an increase in education, information and advice”, the central component of HSE’s new enforcement strategy. “The evidence supports”, it continued, “that it is inspection, backed by enforcement, that is most effective in motivating duty holders to comply with their responsibilities under health and safety law” (HoC WPC, 2004: para 142).

This indicates the extent to which a Government rhetorically committed to “joined up”, evidence-based, policy, as well as its HSC/E, seem remarkably reluctant to accept the findings of the current weight of knowledge in this area. For in terms of regulatory strategy, there is now a substantial body of international and UK research on what motivates employers to improve their safety performance. Thus a soon-to-be-published review of evidence concludes that:

• All the major reviews of the international literature conclude that the most important driver of management action to improve OHS performance is legislation, backed by credible enforcement.
• This finding is mirrored by the UK research, where the need to comply with the law was the most commonly cited reason for health and safety initiatives amongst all sizes of organisations.
• Fear of reputational damage has been identified as another key driver for firms operating in high risk and high profile sectors, and that regulation, inspection and enforcement are key to creating reputational risk.
• The application of enforcement is an effective means of securing compliance in all sectors and sizes of organisations.
• Current levels of inspection, enforcement, prosecution and sanctions are too low to maximise the impact that regulators could have on employer compliance or to provide a sufficient level of deterrence.

All of which leads us to ask the question, Why the retreat from law and its enforcement? The answer needs to be understood in the wider context of a series of related Government prejudices. First, the prevalence of ‘red-tape’ and ‘burdens on business’ rhetoric, accompanied by the use of the term ‘bureaucrat’ as pejorative, undermining the notion of a civil servants and public service. Second, a desire on the part of Government to prove itself as the ‘most business friendly government in the world’, a commitment borne out of the bruising from eighteen years of opposition prior to 1997 during which time key vulnerabilities of the Party were perceived to be its economic competence and its relationship to ‘the unions’. Not being the ‘natural’ party of business, unlike the Tories, New Labour in office has bent further towards business interests than even the Conservatives may have done. Third, this is a government that has accepted the most exaggerated claims regarding globalisation, so that it instinctively eschews regulation in a mistaken belief that Britain can - and should - compete with industrialising countries for low wage, poorly protected employment.

The implications of Government’s prejudices are significant for those who see law and its enforcement as integral to worker and public protection. In combination, such prejudices justify declining resources for regulators, puts them on the back foot in their dealings with a more bullish business sector, and in general force downwards levels of protective regulation and the social wage. The most well-cited, and long accepted, finding regarding safety protection at work is that it is best delivered by strong, active trades unions working through safety committees and safety reps. But law has a role to play in deterring employers, in seeking to secure deterrence and thus prevention, in punishing the guilty, in providing accountability for the bereaved and injured. We should demand that law be effective, and that it be enforced.

References

Health and Safety Commission and Health and Safety Executive (2004) Revitalising Health and Safety. Implementing RHS - Progress Report. April 2004 Update, www.hse.gov.uk/revitalising/rhs.pdf

House of Commons Work and Pensions Committee (2004) The Work of the Health and Safety Commission and Executive. HC 456, London: the Stationery Office.

HSE (2000) Revitalising Health and Safety Strategy Statement. June 2000, London: HSE/DETR, http://www.hse.gov.uk/revitalising/strategy.pdf

HSC (2004a) A Strategy for Workplace Health and Safety in Great Britain to 2010 and Beyond, Health and Safety Executive, www.hse.gov.uk/aboutus/hsc/strategy2010.pdf

James, P. and Walters, D. (2004) Health and Safety Revitalised or Reversed?, London: Institute of Employment Rights.