Barbican Conference on Health & Safety Reform

Public Service Events ran a one day conference entitled ‘Health and Safety Reform – reducing the burden of red tape,’ sponsored by ARCO at the Barbican on 26 April 2012. The conference was chaired by David Ball and had an impressive line-up of speakers including Andrew Miller MP (member of Löfstedt review panel), Judith Hackitt (Chair of HSE), Luise Vassie (Policy Director, IOSH), Thomas Martin (joint-MD, ARCO) and Lynda Armstrong (Chair of Trustees, BSC). In the afternoon session panel members Stephen Williams (Director of Operation Strategy and 2012 Olympic Games, HSE), Roger Bibbings (RoSPA) and Gerard Forlin QC (Cornerstone Barristers) led the debate.

Messages to emerge included strong support for the Löfstedt review findings, notably that the underlying legislation was sound but that its interpretation was sometimes problematic and could depart from good sense and proportionality. In the words of Andrew Miller, the regime was overly complex with too much emphasis on paperwork. What was to be done? HSE’s contribution to the ambitious reform programme recommended by the Löfsted review included a comprehensive review of guidance with the aim of simplification while maintaining standards. In addition the ‘Myth Buster Panel’ had been set up, chaired by Judith Hackitt herself, and had already received its first batch of over twenty myths for scrutiny. One newly-emerged myth was summarily dealt with on the spot, namely someone’s proposal on safety grounds that holly trees be removed from school environments because of the (mild) toxicity of their berries. Judith’s response was an unreserved negative!

So the pervasive message was for a risk-based and proportionate approach to safety. But how to do this? As Luise Vassie described, what is needed is scientific evidence of the magnitude of risks in order to inform priorities, and secondly to check the effectiveness of H&S interventions.

From a personal perspective the overall drift of the conference was encouraging. The need to retain the concept of ‘reasonableness’ and ‘reasonable practicability,’ the need to prioritise on the ‘real’ risks (however defined), and the need to simplify perceived administrative demands including paperwork trails and tick-boxes which were more to do with secondary (liability) risk management than the primary focus which is safety and health. However, the task is not trivial. It requires a deeper understanding of many things which are seldom discussed or alluded to in the practicing safety world, including the nature and utility of evidence, the meaning of practicability, the behaviours of people, and the role of values in decision making. Many of these things have of course been intensively analysed in academia, but it has long been the case that the flow of academic thinking into the ‘real’ world has been erratic and sluggish.

 

Some legal questions

Three questions come to mind right now. These are:

a) According to the most widely used criminal law definition of reasonable practicability a responsible party should always err on the side of safety according to the principle known as ‘gross disproportion’. The question is whether or not this continues to be logical either in general, or in the context of public activities specifically.

b) Whether the requirements set by the law in terms of safety should be seen as a minimum requirement.

c) Whether the law is supportive of the use of risk-benefit assessment.

In response to a) the Löfstedt report provides a much-to-be-welcomed blast of intellect and fresh air because of its emphasis upon a return to risk-based decision making (as opposed to hazard identification and remediation), the use of scientific evidence, and proportionality. Nonetheless, there remain serious hurdles to overcome and his continuing commitment to taking this forward is to be welcomed.

One hurdle is the oft-touted formula “the disproportion must always be gross” which implies a requirement to err on the side of safety to a degree which is “gross.” This position is given added emphasis by HSE in its ‘Principles and guidelines’ document to assist its own officers in which it says “but the disproportion must always be gross,” itself an apparent reference to situations in which risks may already be small. How, though, is it possible to square gross disproportion in low risk situations with Löfstedt’s proportionality?

The origin of the “the disproportion must always be gross” formula is Lord Asquith’s summing up of the 1949 Edwards v National Coal Board case.  However, there are reasons why this might now be challenged both in general and in the particular case of public space. The ‘in general’ argument is to do with the way in which safety has been valued by society. Back in the 1940s the traditional method used by government agencies was simply to do with the value of the lost earnings of an hypothetical deceased person. This came up with rather niggardly valuations of safety and it may well be that the courts were aware of this in their deliberations, so adding a weighting factor under the banner of ‘gross disproportion.’ Come the 1980s, however, the method of arriving at these valuations was switched by the Department of Transport (others followed their lead) to what is known as ‘Willingness-to-pay” (WTP). WTP methods give much higher valuations, currently in the region of £1.5 million per life saved, being based on what consumers are prepared to pay for reducing their own risks. It can be argued that applying a ‘gross disproportion’ weighting to consumers’ own valuations would be tantamount to giving consumers something they have not asked for and do not want!

As for the specific context of public space, the argument has a second thread. This is that if it is accepted that decisions about what to allow in public space require a balancing judgement to be made about the benefits and the risks of that space, then to subsequently apply gross disproportion would be equivalent to loading one scale pan in favour of the other. Why?

In response to b), it is sometimes said and written that the requirements of the law with respect to safety should be seen as a minimum requirement. Prima facie, this is a morally sustainable argument and hard to challenge. But how valid is it?

The legal requirement under the HSWA is to implement safety measures which are reasonably practicable. This implies consideration of the effectiveness of safety measures in reducing risk versus the cost, time and difficulty of applying those measures. If the risk reduction benefit outweighs the latter, the measure must be implemented, and if not, it is not necessary to do so, though safety advocates might still want to go ahead and implement. However, from the position of a neutral bystander, say the proverbial ‘man on the Clapham omnibus,’ going beyond the point of rational decision making as implied by reasonable practicability is equivalent to saying that the views of the man on that bus should be ignored.

The fundamental issue is, of course, that if an agency providing some public good decides it wants to gold-plate its safety measures, then the related costs are going to have to be picked up somewhere and that will ultimately mean the taxpayer. So the quest for higher levels of safety than those reasonably conceived is itself morally questionable. Those resources spent on one thing could have been spent on something else which is possibly valued more highly.

As for c), the answer is that Civil Law has for a long time recognised four factors in determining whether a duty holder has done all that is reasonable in taking care. The factors are the prior level of risk, the severity of the possible consequence, the practicability of control measures and the social utility of the activity. The latter is of special interest in the context of public space and activities because social utility is why they exist. So in Civil Law the use of some kind of intellectual weighing of the benefits of space versus the risks would seem to be an accepted part of the process. However, in criminal law, under the HSWA, it is less clear. Lord Asquith’s 1949 definition of reasonable practicability identified the first three of the above factors but not the fourth. But maybe he didn’t need to because the case he was thinking about was the death of a miner in a coal mine where social utility was not an issue. So perhaps the position is best summarised as one of uncertainty. The courts have not had sufficient criminal cases to work on in which this dimension was relevant (but see The Manchester Hole case).