Tag Archives: Policy debates

Regulating ‘Live Volcanoes’: Health and Safety in Public

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Images from Inquiry into Disaster at Nypro (UK) Ltd, Flixborough on 1/6/1974 (Official Report),via National Archive TS 84/37/1

Images from Inquiry into Disaster at Nypro (UK) Ltd, Flixborough on 1/6/1974 (Official Report),via National Archive TS 84/37/1New Picture (1)

“He [a senior HSE figure] put his hand up and said, ‘no, no, no, stop my boy, stop…that’s worker safety. That’s a dead volcano’, he said. ‘The live volcano is public safety. That is what’s going to energise everyone’.” [R. Bibbings interview, para.19]

One of the most pronounced shifts to have taken place in the last fifty years of health and safety regulation has been a movement towards recognising workplace risks that affect the general public. It is probably fair to say that the earliest eras of health and safety provision did not look beyond the factory or workshop in terms of their scope; indeed, most of the Factories Acts were explicitly limited in terms of the types of workplaces and industries in which they applied. But health and safety today is something that is understood as encompassing all areas of human activity, from education, to recreation, to work, to the use of public space. For many people, this ‘creep’ of health and safety into all areas of life is one of the key reasons for questioning the legitimacy of the law, and negative media coverage of health and safety does place an emphasis on the social, rather than the workplace, aspect of the issue. So when, and how, did this shift occur?

A review of the historical material suggests that the ‘public’ element was relatively little discussed before the 1970s, even in the aftermath of major events like Aberfan (which were seen as ‘public safety’ rather than ‘health and safety’ issues). The turning points appear to be twofold. While the Offices, Shops, and Railway Premises Act 1963 had broadened the scope of the workplaces in which health and safety risks were recognised, it was the 1974 Health and Safety at Work Act s.3 which turned attention to ‘public’ safety risks. This had been introduced in part because of the Flixborough explosion in 1974, which showed the potential of high-hazard risks to ‘cross the factory fence’ and affect local communities. Even then, however, the potential of this extension of coverage was not really appreciated or recognised – policy observers from the time have confirmed that, in the words of a former civil servant (and HSE Director-General):

“Robens did envisage that there would be some limited duties towards the public. But…at the time when the Act was going through, I don’t think that the very extensive ways in which public health and safety have come into play was envisaged.” [J. Bacon interview, para.23]

The second turning point was the mid-1980s, when three factors coincided to make public opinion a key player in regulatory thinking. A combination of the politicisation of issues of regulation and government intervention (particularly by the EC) by the Thatcher governments, a series of major disasters affecting the public and workers between 1987-9 (including the Herald of Free Enterprise and Marchioness sinkings, Piper Alpha, Hillsborough, and the Clapham rail crash), and HSE’s efforts to account for growing concern over major hazard sites (mainly nuclear power, and especially post-Chernobyl) as part of their new Tolerability of Risk Framework (1988) meant that suddenly, what the man in the street thought mattered a great deal more than it had in the past. Not only was more evidence then gathered about public opinion, but the balancing approach to be adopted became more explicit. While the initial assessments of both tolerability and preference looked at high-hazard issues, the legislative and policy framework that was created was soon providing a basis for judgements about an ever-widening array of sectors and issues.

In this way, the new focus on principled, evidence-led decision-making, coupled with the ability of s.3 HSWA to apply to people outside the workplace, would change the face of health and safety regulation forever. It remains an irony that the movement towards applying the law to ‘crazy’ cases like so-called bans on playing conkers in schools, was driven in part by the need to respond to some of the most hazardous workplace dangers imaginable, and a desire for greater rationality.

An introduction to archival research

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In the middle of July, the project’s ongoing archival research programme turned its attention to the holdings at the Museum of English Rural Life at the University of Reading, which include some relevant and interesting materials, particularly relating to the National Union of Agricultural Workers (NUAW). Mike and Laura, who have been conducting the archival work to date, booked in for a day at MERL, and this provided a chance for Paul and Carmen to head down the hill from Whiteknights to learn more about the process of archival research at first hand.

The single most striking observation that Carmen and I made, as novice archive-miners, was the degree of discernment/intuition/expertise needed to search through the catalogues to work out exactly what it is you want to look at. It sounds obvious, but when there are large holdings, and much that is available only via request from the archive (so the friendly local archivist must locate the boxes in storage and deliver them to you), a good deal of decision-making is required to ensure that efforts are focused on the right materials, or at least in the directions that are most likely to be productive. The value of this became apparent as we began sifting through the contents of the first boxes – the Minutes of the Health Safety and Welfare Committee of the NUAW. Each bundle of documents took some time to read for relevant material, and this made that initial search and sort task even more important.

merl

The MERL Reading Room.

The second observation was about the needs and conventions of the particular research context. Many of the materials we were dealing with were more than fifty years old and needed careful handling; the reading room at MERL was full of researchers working on their own projects, making it important for us to be quiet and considerate to others; and the rules of the archive (sign in and provide ID; no pens, only pencils!) must be respected. We also learned the methods involved in using a digital SLR camera to photograph copies of documents for future reference, and the need for careful recording of what you had looked at and in what order!

But the most important lesson learned was the value and insight that comes from engaging with historical materials at first hand. Like a sleuth from a detective novel, finding a snippet of info in a document, snapping a picture, and then following the lead as it develops felt like a real thrill. As an example, I was lucky enough to get the box containing the NUAW H+S Committee minutes from 1970-75 – so contemporary with the Robens Report of 1972 and the passing of the HSWA 1974. It was exciting to track the initial concerns raised by the NUAW about the exclusion of agricultural workers from the scope of the Robens Report, through to evidence of the to-and-fro with government over this issue, and then to the efforts to understand the implications of the general duties contained in HSWA 1974 ss.2-3 (which apply to all employees and others affected by business activities) for farm workers.

It was even more exciting to cross-reference these concerns to contemporaneous evidence from Hansard, to see when and how these issues were raised within the legislative process, including by a youthful Neil Kinnock during Commons debate on 21/05/1973. We also located evidence as to controversies during the post-1974 implementation of the new law, including the ongoing argument (1974-6) between the NUAW and the Country Landowners Association about whether agricultural workplaces should be excluded from the scope of the new unified inspectorate (the HSE) and, by 1978, the emergence of disquiet about the limitations of tripartite working within Industry Advisory Committees.

Overall, the real benefit of going back to the archives is that the sources force us not to take for granted any of our contemporary assumptions about the Robens era. Consensual and tripartite working was shaky in practice; unified inspection and legislation was never a foregone conclusion; and the implications and meanings of the broad duties within the HSWA 1974 took time to be recognised and understood. Reform was thus an ongoing process, not a single event, and that is a crucial realisation for the rest of this project.

Paul

 

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.