Education or enforcement: MPs examine developing strategy

Chris Dyer reviews a select committee report calling for more HSE inspectors.

A House of Commons select committee scrutinising the work of the HSC/E has concluded that the capacity to ensure compliance with health and safety legislation is being hampered by lack of resources¹.

Employers, trade unions and professional bodies, and organisations representing victims, and central and local government, along with Jane Kennedy - the minister for work - gave evidence to the Work and Pensions Committee. The committee is appointed to examine the expenditure, administration and policy of the Department for Work and Pensions (DWP) - the HSC/E's sponsoring government department.

The overwhelming view of those giving evidence was that the HSC/E is a high-quality organisation (see box 1 ). But many of the witnesses went on to say that inadequate resources are seriously reducing its ability to undertake core activities that have a direct effect on improving health and safety performance.

These criticisms come at a time when more than ever is being asked of the HSC/E. The minister for work told the committee that, because improvement in health and safety had plateaued in the mid-1990s, new approaches were needed. The committee says this implies that enforcement of occupational health and safety standards through constant inspection has been tried, tested and found wanting. This view appears to be supported by the lack of progress towards the targets for improvement set out in the government's Revitalising health and safety strategy (see box 2 ).

Resources and enforcement

Two issues emerged as being central to the committee's investigation: whether the HSE has sufficient resources available for enforcement; and the emphasis that the HSE places on the different aspects of its intervention strategy.

The HSE generates some income from the work for which it charges - mainly in relation to regulating the major hazard industries and through sale of publications. Otherwise, the budget is set through the government's spending review process. The HSC/E explained to the committee that, following a period of modest increase in resources, the 2002 spending review set a budget that rose slightly from 2003/04 (£278 million) to 2004/05 (£279 million) and then drops back in 2005/06 (£271 million). It said that "when rising costs are taken into account, this represents a significant reduction in spending power."

The HSC says that its current strategy is to "be clear about our priorities and focus our activities on our core businesses and the right interventions." This means concentrating more on the areas and interventions where it believes it can have the greatest impact, and developing new ways to exert influence.

Some of the evidence the committee received suggests that the HSE is not yet sufficiently focused and does not always make best use of its resources. The EEF, the manufacturers' organisation, questioned the HSE's desire to engage in corporate social responsibility agenda with "the great and the good" when it should be focusing on smaller, harder-to-reach businesses. Nevertheless, the majority of organisations giving evidence to the committee suggested that a lack of resources was having a negative impact on the HSE's capacity to ensure compliance with health and safety legislation.

The Construction Confederation said that under-funding was leading the HSE to concentrate on short-term policing rather than genuinely trying to help the industry with a long-term strategic improvement, and was adding to the HSE's delay in issuing important guidance. It added that, driven in part by a lack of resources, the HSE had been increasingly "unable to provide sufficient prescription in Regulations and guidance". The Institution of Occupational Safety and Health (IOSH) supported increased resources to allow the HSE to "adequately discharge its statutory duties and to establish and implement evidence-based interventions, ensuring competent stewardship of an effective occupational health and safety system for Great Britain". Concerns were also expressed by organisations about reductions in the HSE's in-house expertise, such as reduced staffing levels in the Employment Medical Advisory Service and the abolition of the chief medical officer.

Some witnesses criticised the HSC for not campaigning openly for increased resources. IOSH, for example, is disappointed that an assumption runs through the HSC's draft strategies that resources cannot increase. The Royal Society for the Prevention of Accidents (RoSPA) argues that the HSC/E and the Treasury should make macro-economic "spend-to-save" projections, comparing additional HSC/E inputs with the savings that might be achieved as a result of meeting agreed targets. If the government believes that there is a "business case" for health and safety, RoSPA argues, this should apply equally to its own spending plans.

Against this background, the 2004 spending review commits the DWP to "realising total annual efficiency gains of at least £960 million by 2007/08". Part of this saving requires the DWP to reduce its workforce by 30,000, redeploy 10,000 posts to front-line roles and reduce its administration budget in real terms by 3% per year by 2007/08. Jane Kennedy told the committee that this was an opportunity to consider how the HSE uses its funds, and that the DWP strongly supports the HSE's strategy. "We believe it measures the work of the HSE and gives us an opportunity to look at their performance in terms of the funds that they receive."

Inspection and enforcement

Organisations such as the Centre for Corporate Accountability (CCA) and the union Prospect point to a direct link between the HSE's resources, the number of inspectors it can employ and the enforcement activity it is able to carry out. The committee was told that inspector numbers rose during a period of increased financial resources (2001/02-2003/04) and fell in 2004, following a freeze on recruitment, as a result of the 2002 spending review settlement.

A discussion paper presented to an HSE board meeting in September 2003 proposed putting more emphasis on the "educate and influence" aspects of its work. This is based on a belief that altering the balance will help the HSE to climb off the current safety performance plateau and tackle the increases in ill health. But the HSE acknowledges that the evaluation of the effectiveness of different approaches and techniques is not yet sufficiently developed to allow this to be more than a belief.

A literature review conducted for the HSC/E, by way of building an evidence base for this strategy, found that enforcement was an effective means of securing compliance: it creates an incentive for self-compliance and a fear of adverse business impacts, such as reputational damage, in all sectors and sizes of organisations. The literature review also found some evidence that advice and information is less effective in the absence of the possibility of enforcement. It notes that "many organisations are not motivated by the business benefits to improve health and safety."

Nevertheless, the minister for work confirmed that the government's view was that the emphasis on advice and information, rather than inspection and enforcement, needed to increase: "I think the HSE would share the view that it is the enagament of industry and business in safety - getting them to recognise the importance of safety - that brings them a greater degree of success than straight enforcement of a set of Regulations. It is about winning hearts and minds, it is about persuading people of the importance of safety."

The CCA told the committee that the "HSE's new evolving policy on enforcement - to move away from inspection, investigation and formal enforcement - contradicts overwhelming international and HSE evidence that it is inspection, investigation and formal enforcement that works best."

More HSE inspectors?

The committee received evidence on enforcement activity in two of the HSE's priority programme areas - construction and the health service. Both employers and unions in the sectors told the committee that they considered the HSE to be under-resourced in terms of being able to carry out the level of inspections needed.

The Construction Confederation says that the HSE only has sufficient resources to be reactive after an event and needs another 50 inspectors to be able to devote more time to those sites where there is the highest risk of accidents happening. The NHS Confederation says it does not feel that the HSE is sufficiently well-resourced to meet its objectives in the NHS. In 2003/04, the HSE carried out 201 inspections in the health service, where nearly 1.3 million staff are employed in many thousands of workplaces. The Royal College of Nursing, and Unison, echoed concerns about lack of resources for enforcement.

Evidence also suggested that HSE inspectors are under considerable pressure. The EEF says that inspectors appear to be "under time pressures not to dig into what has happened. . . but simply to say, 'Right, there is one more job, one more to tick off'". Prospect says that in order to be able to focus limited resources on priority areas, inspectors are being told to ignore other areas unless they became matters of evident concern. This pressure on inspectors' time has been recognised by the head of the HSE's Field Operations Directorate (FOD), who has noted that increasing the contact time inspectors have with dutyholders is a continuing concern in FOD.

Bill Callaghan, chair of the HSC, told the committee that the HSC has put a "strong case to ministers for more resources" in respect of occupational health support and communications, but he was more equivocal when asked whether the HSE needs more inspectors. The committee believes that, when contrasted with the evidence it received on cut-backs in core functions due to lack of resources, these demands are far too modest.

Gareth Williams of the DWP told the committee: "If you ask the HSE - as you did - had they more resources, where would they put them, the answer would not be inspectors, it would be around advice, communication and prevention upfront. Even if you sought to improve that ratio with the additional funding, you still would not cover every company, you would still only inspect them on a limited number of occasions, and the advice would depend on the day you turned up."

But the fact that even with more inspectors the HSE would not cover every company is not, in the committee's view, an argument for not increasing the number of inspectors. It referred to the literature review on the effectiveness of the HSE's interventions, which found some evidence that higher levels of enforcement would prompt organisations to make further health and safety improvements, as well as evidence showing that face-to-face contact is the most effective way of providing information and advice, particularly for small firms. The committee believes that the number of inspectors needs to be increased in order that the HSE can increase incidents investigated and proactive inspections.

Number of prosecutions

Evidence to the committee suggests that there is also concern at the low level of prosecutions, again particularly among trade unions. The Environment, Transport and Regional Affairs Committee, which examined the work of the HSC/E in 2000, concluded that there was an urgent need to increase the level of prosecutions undertaken by the HSE. Since then, the HSE's figures show that the number of prosecutions initiated fell from 2,115 in 1999/2000 to 1,688 in 2002/03, while the number of convictions fell from 1,616 to 1,260. Over the same period, the number of enforcement notices issued by the HSE rose to 13,263, up from 11,304 in 1999/2000.

The HSC/E pointed out to the committee that formal enforcement action, such as prosecution, is time-consuming, requiring the "pursuit of all reasonable lines of inquiry", whereas the CCA referred to a study showing that "resources are a key constraint on decisions to prosecute".

But the CCA also points out that the HSE seeks costs after conviction and is allowed to keep this money. In 2003/04, the HSE received £4.017 million in costs (an average of £4,910 per case prosecuted in England and Wales in that year). The CCA comments that this should "arguably cover a significant amount of the costs of taking prosecutions". It added that most prosecutions arise from investigationsinto incidents, and that the current strategy to reduce the number of incidents investigated is likely to result in the number of prosecutions falling still further.

Penalty levels

Maximum penalty levels are set out in s.33 of the HSW Act. In England and Wales, most prosecutions take place in the magistrates' court, where there is a maximum penalty of £20,000 for a breach of ss.2-6 of the HSW Act and £5,000 for other breaches of the Act or Regulations. In the higher courts, an unlimited fine can be imposed for such offences and imprisonment is possible for offences such as failure to comply with an improvement notice.

A range of organisations giving evidence to the committee, particularly trade unions, considered penalty levels to be too low. The average fine per case fell from £11,141 in 2001/02 to £8,828 in 2002/03. In fact, there has been no substantial change in the general level of fines since the Court of Appeal said they were too low in November 1998 (HSB 275). The HSC/E point out that "large company health and safety fines [are] up to 10 times lower than the general level of financial services fines for larger companies." It highlighted higher fines as one of the changes that would most help it perform its functions more effectively.

The CBI says that it has "no problem with health and safety fines being aligned with the sort of penalties we find in other areas". Nevertheless, it added that further training might be more of a motivator for improving performance and preventing recurrence. The EEF says that the case for higher fines can be won only if a correlation with improved workplace health and safety could be made. The EEF supports hypothecating fines so that the money would be reinvested in the HSC/E to facilitate their driving greater improvement.

Proposed solutions

On the basis of the evidence it heard, the committee reached conclusions on enforcement, penalties and legislation, which it followed with recommendations that it believes would improve the current situation (summarised below).

The committee also made other recommendations to address its concerns on issues such as inadequate occupational health support, ineffective strategies to reverse the threatened decline in consultation with workers by employers on health and safety issues, and work-related road traffic accidents (see box 3 ).

No simple answers

On inspection and enforcement, the committee found that in a situation where resources are both limited and finite, promotion of untested approaches that emphasise information and guidance in preference to inspection and enforcement flies in the face of existing evidence of what works.

The HSC argues that greater attention, and resources, needs to be directed to other approaches. This has led to an increased emphasis on promoting the "business case" for health and safety and on developing "partnership" approaches to dealing with health and safety matters. Although the committee found little fault with these ideas, it doubts whether there is tangible evidence of their success as strategies for improving the work environment for employees in Britain. At the same time, the committee believes that there is strong evidence to support the view that inspection, backed up by formal enforcement action where necessary, is effective in persuading employers to adopt appropriate occupational health and safety arrangements.

Nevertheless, it accepts that a choice to either emphasise guidance or enforcement to achieve compliance is too simplistic a decision: both have their place. Equally, it believes that it is important that innovative approaches for achieving better compliance and "winning hearts and minds" are developed. The real challenge would seem to be to find ways to achieve this without developing one strategy at the expense of reducing the role of the other.

Commenting after the publication of the report, TUC general secretary Brendan Barber said: "The select committee has done an excellent job - its report is a beacon of clarity and common sense. It acknowledges that over many years, a lack of resources has prevented the HSC from doing as much as it would have liked to tackle ill health at work and employers with poor safety records."

He added: "The suggestion that union safety representatives should be given more rights to make sure their employers are complying with health and safety laws would make a real difference to workplace safety. The TUC will be seeking urgent action from the HSC on the issues raised by the committee."

Bill Callaghan, chair of the HSC, said: "Many of the recommendations are complex and will need to be examined in detail. Some, such as those relating to resources and legislation, are for other parts of government. For those directed to HSC and HSE, we will contribute to the government's response in due course."

As HSB went to press the government had not yet produced its response to the committee's report.

Chris Dyer is editor of HSB and a freelance journalist.

¹ "The work of the Health and Safety Commission and Executive", HC 456-I, House of Commons Work and Pensions Committee, www.publications.parliament.uk/pa/cm/cmworpen.htm, free.