Safety management and public spaces

Following up on our paper on adventure activities, Wiley will shortly be publishing a more-broadly focused paper by David Ball and Laurence Ball-King which looks at the impact of safety management on public space and public activities. By public space we mean anything from city squares to parks, woods, forests, theatres, riverside locations, countryside, canals, heritage sites, and even cemeteries. Public activities refers to organised sports from tennis to triathlons, or to fundamentally individual activities like play.

Readers will be aware of the furore over the impact of safety on such spaces, some of which furore is justified (see for example HSE’s ‘Myth of the month’ site at http://www.hse.gov.uk/myth/index.htm). The Löfstedt review of Health and Safety is tackling the impact of this upon businesses. But we believe that many of the so-called ‘Myths of the month’ referred to on the HSE website stem from impacts of safety regimes on public life. For example, riverside walks pose the obvious hazard of water and from a safety-dominant perspective should be fenced off. But that might well detract from the beauty, naturalness and hence the enjoyment of those places. Likewise, some deplore the occasional deaths which arise in sports, but maybe that is the price we have to pay for having those activities which, incidentally, promote copious amounts of good health – physical, emotional and social. This is not to say that safety in public life is unimportant, but it is to say that it is not the only thing, and that other things matter too.

The paper describes what we see as an epic policy struggle which has been fought in Britain over the last couple of decades to reassert the purposes of public life and public places so that they are not overlooked, sidelined, or otherwise trampled upon in the dash to implement safety management systems. Sectors looked at include children’s play provision; countryside management; heritage locations; land management including, especially, arboriculture; and outdoor education.

If you would like to see the full paper it may be purchased from Wiley’s online library via the following URL:

DOI: 10.1111/j.1539-6924.2012.01900.x

Or contact us.

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.

 

The Löfstedt review of 2011

From our perspective this report by Ragnar Löfstedt is both immensely welcome and dramatically  important. As was said in our evidence (by myself and Laurence Ball-King) to his Review Panel, the problems being experienced in relation to the safety of the public and the impact of safety measures on public life were not in our view attributable to our legislation (primarily the Health and Safety at Work etc Act 1974 (HSWA), and the Occupiers’ Liability Acts (OLA)), but rather to their misinterpretation. We went so far as to say in our evidence that the underlying philosophy of these Acts was even something to die for. So we are delighted that Löfstedt has drawn the same conclusion.

Why is the legislation so important? Because, as explained in our book, the UK philosophy is not about eliminating risk but essentially about doing what is reasonable, and what, we say, could be more reasonable than that?! The implication of this is that if Tom, Dick or Harry comes up with some ridiculously expensive or inordinately troublesome safety measure, you are not required by law to implement it because it would not be reasonable. So a good question to ask if you are presented with a proposition which has a whiff of over-the-topness about it, is to see the evidence that it is reasonably practicable (this should contain evidence on how effective it will be in reducing risk as well as information on costs and difficulty of implementation and any unintended consequences which the proposed intervention might have).

Also of monumental significance is Löfstedt’s total support for evidence-based health and safety measures, and for proportionality. Although both of these are obvious requirements for any rational approach to anything at all, there has been a feeling that the UK has been drifting towards a philosophy of hazard-based thinking, as opposed to the kind of risk-based thinking inferred by the HSWA.

The essential difference between hazard-based and risk-based thinking can be illustrated by a simple example. The picture below shows a traditional canal-side lock. These are used by the public for recreational purposes. They clearly expose users and casual  walkers to a number of hazards, in this case of unfenced drops and serious injury or drowning. From a strict hazard-based perspective you would be required to do something about this, maybe to put up railings or warnings or both, or even ban access. From a risk-based perspective, however, you might be able to leave it as it is if the risk of falling off can be shown to be very low, and/or the benefit of retaining the historical authenticity of the unmodified lock outweighs the risk of harm.

In fact, we think the Löfstedt report and our book tread a remarkably similar path. The main difference is that Löfstedt’s remit was primarily the effects of H&S activities on business, whereas our emphasis is upon the effects of H&S upon the provision of public space and public activities. The stories, though, are remarkably close.

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).