Monthly Archives: July 2014

The Health and Safety at Work Act, 40 years on – pt 2

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“How much of what we could describe as the “Robens world”…remains? I think that the only possible answer to the question is…very little.” (John Rimington, 2008: http://www.rospa.com/occupationalsafety/memorial/info/john-rimington.pdf)

As the previous blog post discussed, the Health and Safety at Work etc. Act 1974 remains the foundation-stone of the contemporary regulatory regime, and many who work in the area still pay homage to the enduring ‘Robens philosophy’ as a guiding set of assumptions (see the British Safety Council’s Safety Management feature on the ‘HSWA at 40’: https://sm.britsafe.org/hswa-40-act-changed-our-working-lives). But the HSWA is arguably no longer the unifying force that it once was. Rimington, a former Director-General of the HSE, argued that times had moved on since Robens due to the shift of policy-generating capacity from Whitehall to Brussels, a decline in the extent of the problems (a lack of unified regulation, high injury rates, a hazardous heavy industry sector) that Robens set out to address, and the erosion of a common-sense government consensus on the issue by the emergence of a ‘nannying tendency’. Which of these factors have most tangibly influenced subsequent developments is a matter for debate; for now, two perhaps merit a closer look.

Firstly, while it has undoubtedly hugely influenced the UK’s system, the contrast between EU and UK approaches to health and safety regulation is arguably overstated, contributing to the misguided impression that the UK is forced to give effect to an alien regulatory regime. Since the surge of EU health and safety legislation from 1989 to 1992 (the UK implemented the ‘Six Pack’ on January 1st 1993), EU policymakers have opted for the ‘route of less regulatory intervention’ (see Wright: http://www.bailii.org/uk/other/journals/WebJCLI/2008/issue1/wright1.html), with soft law methods such as ‘awareness raising’ and ‘social dialogue’ being increasingly engaged (as outlined in The Health and Safety at Work Strategic Framework 2014-2020). This, together with the fact that EU-issued health and safety directives rarely prescribe the precise methods Member States must adopt to comply, suggests that the UK’s hand is far from being forced. Although there are differences in approach to health and safety regulation among Member States (e.g. in the structure of insurance systems and responsiveness to risk-based tools), the EU and UK approaches are perhaps not as dramatically different as they are often portrayed. The EU’s regulatory approach is frequently characterised in terms of the precautionary principle, erring on the side of caution and overregulation. This is in stark contrast to the UK’s perceived approach, with its apparent focus on regulatory impact assessment and tendency towards minimalism.

However, the deregulatory, burden-lifting agenda is not limited to the UK. Even Article 118A of the Single European Act itself, seen as key in facilitating European health and safety legislation, insists that: ‘Such Directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium sized undertakings’. The establishment of the High Level Group on Administrative Burdens, the ‘Stoiber Group’, is yet another guard against the ‘burdens’ of regulation. Indeed, the economic rationale behind health and safety regulation is increasingly being cited in EU circles, mirroring the UK’s demands for greater economic rationality in governance. While the extent of the EU’s influence could not have been anticipated by the Robens Committee, the charge that it has distorted the UK system beyond recognition is arguably misplaced.

Secondly, since 1974, HSE and the HSWA have been subject to repeated review processes, which have given a sense of how health and safety relates to shifting government priorities. In 1994, a major review conducted by HSC restated support for the Robens approach, but concluded that the regulations had once again become too numerous, requiring simplification. It led to greater use of cost-benefit analysis, audit, and the closer management of regulatory activities; this occurred against the backdrop of the Major government’s wider reforms of public sector accountability and ‘Next Steps’ agencies. Concerns about accountability gave way to those about efficiency when HSE was discussed as part of the Hampton (2005) and Macrory (2006) reviews of risk-based regulation and enforcement; the agency was seen as a leading exponent of ‘better regulation’ practices but was pushed to take greater account of economic concerns in rationing its use of resources, reflecting the wider ‘burdens on business’ agenda within the New Labour government of the time.

Lastly, the more recent Young (2010), Lofstedt (2011), and Temple (2014) reviews of health and safety have shown government taking an interest in the substantive content and character of health and safety regulation, demanding that the way in which regulation is done, and the substantive outcomes it achieves, should change. They suggested that there are areas where health and safety has gone too far and in which it should be curtailed (particularly low-risk workplaces, the self-employed, and areas of social life) because the idea of health and safety regulation, and not just the process, was in question. Whether this is reflective of a fundamental shift in legitimacy, or just an increasing governmental desire to manage public perceptions, remains to be seen.

The Health and Safety at Work Act, 40 years on – pt 1

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As the current health and safety regime in Britain approaches its 40th anniversary, it is interesting to look at the origins of one of the most significant changes to occupational health and safety regulation of the 20th century. The Health and Safety at Work etc Act received royal assent on 31 July 1974 and came into operation that October. It wasn’t just a reshuffling of existing provisions, but a major rethink of how Britain approached occupational health and safety – and it has had an impact on everyone. Importantly, it didn’t just apply to workers but also to situations where the public might be exposed to dangers created by work. Given that this forms the basis of approaches to health and safety today, it is important to appreciate how it came about.

 

Britain’s health and safety legislation developed in the 19th and 20th centuries in a piecemeal fashion, with regulations being made and amended in a rather fragmented way – industry by industry, case by case. It was reactive, rather than proactive, and tried to play ‘catch-up’ with harmful developments after they happened. By the 1960s a confusing array of legal requirements, recommendations and inspection agencies meant that a unified approach to health and safety at work was lacking. And there were indications that the current situation was not as effective as it could be: deaths and injuries at work were rising.

 

As a result, the Committee on Safety and Health at Work was set up. It was chaired by Lord Alfred Robens, a former Labour MP and Chair of the National Coal Board, and sat between 1970 and 1972. It was given a wide remit: to examine not only existing occupational health and safety provisions, but to consider the whole ethos that underlay workplace safety – with particularly emphasis on the place of voluntary action – and to consider how best to protect the public from hazards produced by workplaces. The Committee held meetings, went on visits (in Britain and beyond) and considered written and oral evidence from government agencies, employers, unions, employees and accident prevention organisations, before producing its report.

 

The Report’s recommendations shaped the subsequent debates and eventually the 1974 Act. Some of the key aspects were to do with where responsibility for health and safety should lie. The Report concluded that the current approach to regulation ‘tends to encourage people to think and behave as if safety and health at work were primarily a matter of detailed regulation by external agencies.’ Instead it – and the Act – wanted to promote self-regulation, so that employers and employees played a greater role in health and safety. It wanted to involve all levels within a company, from senior management to shopfloor worker, but also seeing a place for a new, single government agency to oversee and if need be enforce the law.

 

The law was to be permissive – so, instead of specifying (in sometimes minute detail) what equipment was to be used in a particular case, it was to lay down a general duty of care, to be backed up by voluntary codes of practice and standards that could be worked out (and changed quickly, if need be) at a local level. The new legislation was also to apply to virtually all workplaces, whereas previous laws tend to apply to individually specified occupations. This broadened the application of health and safety law hugely, including to many self-employed people. And the new Act was to take into account the interests of public safety, particularly where large-scale hazards were posed (for example, from factories or chemical works situated near housing).

 

As might be expected, the Act had a mixed reception. The large scale nature of the changes were immediately obvious and attracted comment from those involved with occupational health and safety. Some welcomed the Act, seeing it as a ‘new philosophy’, particularly in the provisions ensuring workers should be consulted over health and safety matters. However, not all responses were enthusiastic. Some trades unions were concerned about the ways in which government power appeared to be being reduced – particularly when it had long been claimed that failure to enforce the regulations was a major problem. And at least as early as 1978 complaints were being levelled at the Act on the grounds that it created ‘red tape’ and a ‘paperwork burden’, or imposed extra costs on the economy. There were also underlying factors that were not addressed by the Act – as one commentator at the time noted, ‘the Government’s part will remain inadequate … unless they are willing to provide more money’. Clearly ideas about the legitimacy of health and safety were contested, and many of these debates for and against continue to this day – and the next post on this blog will have a think about the more recent years.

Reflecting on the 1974 Health & Safety at Work Act

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This month’s issue of the British Safety Council’s journal Safety Management includes a series of reflections on the 1974 Health and Safety at Work Act, which has its 40th birthday this month. One of the pieces is written by Mike Esbester, and puts the Act into a long perspective, flagging up some continuities and changes in how we have thought about and approached issues of health and safety at work over the last 150 years or so, and identifying some challenges and opportunities for the future.

 

Read more at: https://sm.britsafe.org/hswa-40-act-changed-our-working-lives

 

Expect to read more about the 1974 Act here in the coming weeks – do check back!