Local authorities are struggling when it comes to health and safety enforcement. Andy Lucas thinks the time has come for Government action

In 1972, the Robens Committee first reviewed the provision made for the safety and health of people at work, with the aim of changing the way in which health and safety enforcement was achieved. By consolidation of existing legislation and a distinct movement towards self-regulation the Health and Safety at Work Act (1974) (HASWA) was subsequently introduced. However, as we enter the 21st century, there are new challenges facing local authorities that affect the way health and safety is, and will be, regulated.1
In order to assess whether current approaches are still relevant, it is important to consider the following points:

• is there consistency in the enforcement of health and safety?;
• how significant is the impact of small and medium-sized enterprises (SMEs)?;
• how effective is health and safety legislation?; and
• can local authorities continue to be effective in enforcing health and safety?

CONSISTENCY IN HEALTH AND SAFETY ENFORCEMENT
The enforcement of health and safety in this country is divided between the Health and Safety Executive (HSE) and over 400 local authorities, and it is clear that there are inconsistencies between the two. Speaking in 1999, at the Chartered Institute of Environmental Health Congress in Bournemouth, Jenny Bacon, the existing director general of the HSE, stated that the challenge of inconsistency between HSE and local authorities is a major one.

The HSE reports directly to the Health and Safety Committee (HSC), and its officers are all trained to an exact standard. Because they only enforce health and safety, it is arguable that consistency within the organisation is achieved. In contrast to this, council responsibilities are extremely varied and the enforcement of health and safety is only a small part of these responsibilities. Each local authority reports to a council of members and one study has concluded that there is little evidence of an active interest from members in the health and safety inspection and enforcement responsibilities of their authorities.2

The HSE receives funding directly from the Government and generates income by the provision of services; as part of a comprehensive spending review, the HSE will receive an extra £63m over the next three years. In comparison, local authorities are not able to ring fence money to finance health and safety enforcement due to the ambiguity of HASWA Sec 18 and the guidance contained in HELA LAC 67/1 (rev2). Also, diminishing resources are being directed into areas of work with prescribed targets, eg food safety.

The "Better regulation task force review on enforcement" states that food inspections of low risk category premises, required by published performance indicators, may be being carried out at the expense of health and safety inspections of high risk premises.3 Also, a recent report into the management of health and safety enforcement found that it was clear that similar authorities were devoting significantly different resources to health and safety enforcement.4 Each local authority works to its own method and style and without a structured system, which sets standards and targets for all to follow, it is hard to see how consistency can be achieved.

IMPACT OF SMEs
Much has already been written about the significance of SMEs and there can be no doubt as to their impact on the future of health and safety enforcement. In the UK, the overall employment distribution is such that small firms of less than 50 employees now account for 99 per cent of the total number of businesses.5 Changes in the labour market and, consequently, the gradual evolution of the small business, have had a significant effect upon the distribution of occupational risk within UK industry today. Recent studies have concluded the following:

• the rates of fatal injury and of amputation injury in small manufacturing workplaces (less than 50 employees) are double those in large workplaces (over 200 employees).6 The rate of amputation injury, 1994/95 - 1995/96, is not just higher in small workplaces but becomes higher as the size of the workplace decreases;7
• the rate of major injury requiring immediate medical treatment is about 25 per cent higher in small manufacturing businesses compared with larger ones;8 and
• HSE data suggests that the self-employed are more likely to have accidents than employees.9

The following problems can be associated with SMEs:

• poor access to information: few small businesses have specialist in-house health and safety expertise;10
• limited resources: a small business is unlikely to have adequate resources to buy in health and safety expertise; and
• shifting labour market: small firms employ fewer people to carry out more duties and are likely to contract-in a self-employed workforce (of unknown quality and safety record). Complex contractual agreements can lead to poorly defined lines of communication and responsibility, and confusing safety management.11

In the 1970s, the Robens Committee could not have envisaged the impact of SMEs, and, as a result, new methods of targeting and enforcement need to be devised.12

BETTER REGULATION?
Over the last 40 years, health and safety law has changed from being prescriptive to goal setting. However, there must be a balance between over-zealous enforcement and the "collectivist laissez-faire" of the 1950s, as described by Dawson et al (1988).13 Lord Robens, through the HASWA, set in place a legislative framework to support self-regulation, but recently, concerns have been raised about whether the system is still appropriate.14 The implementation of the six pack, and in particular risk assessment, is indicative of the shift towards greater self-regulation. HSE-commissioned research has concluded that the six pack regulations appear to have had "a positive impact on health and safety standards".15 However, the research also found that there was a "telling difference in awareness and compliance between large and small organisations".

In response to this, the HSC has undertaken a major review of the framework for health and safety. As a result, 40 sets of outdated regulations have been removed.16 Although goal setting legislation allows flexibility for a small business, it can be confusing because it does not prescribe the measures necessary to comply. Instead, there now exists a vast amount of guidance to use in conjunction with the legislation. As regulations are predominantly goal setting, businesses depend upon the adequate provision of guidance in order that they can comprehend what is expected of them. As businesses become smaller with less external assistance, so it becomes harder for them to remain up-to-date with all relevant regulations. Thus, they place extra demands upon enforcement officers to provide this information, which places extra pressure upon local authority resources.

In addition, self-regulation relies upon the sufficient threat of enforcement to ensure a proactive attitude towards the management of health and safety. As local authority resources are increasingly under pressure, businesses can no longer rely upon frequent and regular inspections or visits. Instead, the threat of enforcement action has to be enough to make sure that a company will proactively carry out the necessary action to ensure compliance with the law. However, there have been recent high profile cases resulting in questions being asked about the low levels of fines and sentencing currently being imposed for health and safety offences and thus, the effectiveness of prosecution as a deterrent.17

To investigate these issues, a study was undertaken (by the author) which aimed to gain the opinions of both local authority health and safety enforcement officers and local businesses with regard to health and safety enforcement. It was also hoped that the information gained might help to give direction to future enforcement of health and safety. The results and conclusions of the study can be summarised as follows:

INFORMATION AND TRAINING
The study indicated that 27 per cent of businesses had never used HSE guidance, ie codes of practice leaflets, however, those that did found them easy to understand. Both groups stated that health and safety information was made easily available to them, however, officers did not believe that businesses made sufficient use of this information, or that companies had a good understanding of health and safety regulations. Significantly, both groups felt they were not consulted about new regulations before being introduced. The majority of officers felt that they needed more training in health and safety. The most preferred method of providing information to businesses was by personal visit. Figure 1 indicates how businesses prefer to access health and safety information.

ENFORCEMENT
Consensus between both groups confirmed that regular inspections are necessary to ensure that companies comply with health and safety law; they help to reduce accidents at work and improve workplace health and safety. Businesses agreed that they had benefited from their last inspection but predictably, only officers agreed that inspections should be carried out more frequently. Officers felt that inspections were not as effective as they could be due to the limited time spent on site. Evidence suggested that officers spent almost twice the time on indirect contact, such as telephoning and correspondence, than on site visits.

PROSECUTION
Both groups agreed that a company or employer should be prosecuted for failing to maintain health and safety standards, or for causing death or injury to others while at work. Businesses accepted that the service of health and safety improvement notices or prosecution was justified for failures to comply with regulations. Overwhelmingly, the majority of officers agreed that fines imposed by the courts for health and safety offences did not reflect the severity of the offence.

CONSISTENCY AND TARGETING OF ENFORCEMENT
Most officers were concerned about maintaining consistency within their local authority (57 per cent), rather than between local authorities. Only 57 per cent of the officers surveyed confirmed that they took part in inter-authority cross validation exercises, and only 33 per cent of the officers took part in internal training exercises designed to maintain consistency.

Between 60 and 70 per cent of the officers surveyed referred to the HSE Enforcement Manual, West Midlands Health and Safety Group Enforcement Policy, and the Enforcement Concordat (publications used by officers to maintain consistency). However, the range of results indicated that in one authority the Enforcement Concordat is used by 75 per cent of officers, while in another it was not used at all.

TARGETING LIMITED RESOURCES
A total of 69 per cent of officers agreed that health and safety was under resourced where they work and that more resources should be put into carrying out proactive health and safety inspections, as shown in Figure 2. Again, the consensus demonstrated that officers valued the benefits of programmed routine inspections.

LEGISLATION
There was strong agreement between both groups that health and safety regulations should continue to be goal setting and not be prescriptive, even though officers agreed that prescriptive regulations were clearer to enforce. Officers were conclusive that UK business should not regulate itself. Most importantly, officers were asked if they believed HASWA is outdated and should be revised, and 79 per cent of the officers said no. Clearly, there are inconsistencies in health and safety enforcement between both the HSE and local authorities, and between local authorities themselves. Within local authorities, inconsistencies are evident in the allocation of resources, training and competence, staffing, and the overall priority placed upon health and safety enforcement responsibilities.

SMEs will continue to have a major impact on the enforcement of health and safety. As business size contracts, access to health and safety expertise is lost and therefore there is a greater need for personal contact with the enforcement officer. Unfortunately, this also has significant resource implications on local authorities and unless there is a change in health and safety prioritisation at national level, it is unlikely that local authorities will be able to meet the demands of SMEs. A self-regulatory approach is still preferred by both groups, however, to continue to be effective, there must be a sufficient threat of enforcement action. However, the majority of enforcement officers felt that, in general, fines did not reflect the severity of the offence. Without the fear of prosecution, self-regulation will not be as effective as enforcement relies upon a proactive, rather than a reactive, attitude towards health and safety.

The consensus within the enforcement officers group that HASWA did not need revision should be viewed as a tribute to the vision of Lord Robens. However, local authorities face difficult times and with increasing demands and reducing resources it is difficult to see how health and safety enforcement within local authorities will continue to survive with any degree of bite or professionalism. In simple terms, local authorities need increased resources for health and safety enforcement. As more work is passed onto local authorities without any accompanying resources (most recently gas safety), health and safety will increasingly struggle. This will substantiate the London Hazards Centre view that "local government enforcement of health and safety legislation is poor".18 Local authorities are under great pressure to revitalise health and safety and are looking towards the government for direct assistance in relaunching the health and safety agenda.

However, unless these resourcing difficulties are recognised by the Government and resolved, it is hard to imagine that this situation will improve. The DETR's "Revitalising health and safety strategy statement", June 2000, indicates the Government's undertaking to raise the profile of occupational health and safety in this country. The role played by local authority enforcement deserves, and needs, more recognition. It therefore seems cruelly ironic that in his opening foreword to the DETR document, the Deputy Prime Minister, John Prescott, fails to even mention the role that local authorities play in the enforcement of health and safety today.
The author would like to acknowledge the assistance given by enforcement officers from the seven local authorities within the West Midlands.

REFERENCES
1 HSC (1999) "Revitalising health and safety consultative document," Dept of Environment, Transportation and Regional Affairs.
2, 4 York Consulting (1998) "Management of health and safety enforcement in local authorities" (Restricted Document) HSE Books, HMSO.
3 Crown Copyright (1999) "Better regulation task force review: enforcement," Central Office of Information, LONDON.
5 HSC (1998) "Plan of Work For 1998/99," HSE Books, HMSO.
6, 7, 8 HSE (1998) "Small and large manufacturing workplaces rates of workplace injury 1994/95-1995/96" Fact Sheet, HSE Operations Unit.
9 HSE (1998) "Developing an occupational health strategy for Great Britain," HSE Books, HMSO.
10, 11, 12 HSC (1999) "Revitalising health and safety consultative document," Dept of Environment, Transportation and Regional Affairs.
13 Ridley and Channing (1999) Safety at work 5th edn, Butterworth-Heinemann, Oxford.
14, 15 Jenny Bacon "Scrap 25-year-old-regulation system, says think tank report" (Article) Health and Safety at Work, January 2000, Butterworths Tolley Magazines.
16 Editorial "Better regulation: taskforce wants more local authority involvement" (Article) Health and Safety.
17 R v F Howe & Son (Engineers) (6 November 1998) Royal Court of Justice 97/8101/Y3.
18 House of Commons (2000) Environment, Transportation and Regional Affairs Fourth Report.