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April 27, 2008

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Businesses and unions react to Regulators’ Compliance Code

The HSE must now follow a new code of practice for regulators requiring it to take a risk-based approach to inspection and enforcement.

The Regulators’ Compliance Code will mean fewer inspections for compliant businesses but more rigorous inspection when there is a high risk of a business flouting safety regulations. The Code is based on the findings of the 2005 Hampton Report, which stated that enforcement of regulation should be risk-based and that the voluntary arrangement was not working as well as expected.

According to the Department for Business, Enterprise and Regulatory Reform, businesses can expect a cut in unnecessary health and safety inspections, form-filling, and information requests, as well as more transparent, flexible and consistent enforcement. Businesses can also challenge the HSE, and other regulators, through judicial review if they do not follow the Code.

Business and competitiveness minister, Shriti Vadera, said: “The Compliance Code requires regulators to work better with business and ease the burdens placed on those who operate within the rules. Regulators must take a light-touch approach to companies who comply with the law and target enforcement only at those who benefit by flouting it.”

The Code has been given a cautious welcome by Prospect, the trade union that represents HSE inspectors. Describing the code as a “mixed bag”, its negotiations officer, Mike Macdonald, told SHP: “The HSE has always been proportionate and, generally, prosecution has been a last resort. You still need inspectors going on site and looking at the contractors and sub-contractors, as history often shows that if people can cut corners, they will.”

He also raised concerns about the judicial review. “I hope the courts would recognise that the law on health and safety is criminal law. I do wonder what the value of encouraging companies to take up judicial review is.” He went on: “Prosecution is usually the final resort to achieve compliance and change behaviour. The burden of proof has to be high, so a Judicial Review could be a waste of public money. I would be very disappointed if employers started using the judicial review if they have broken criminal law, as that’s an abuse of the process.”

As well as the HSE, other regulators, such as the Environment Agency, will have to take the Code into account. In England it also applies to local-authority functions like trading standards, environmental health, and licensing, as well as fire and rescue authorities.

Meanwhile, an external review of the HSE’s progress in implementing the Hampton principles has urged the regulator to make better use of intelligence and communication to help it target businesses, as well as improve the quality of its guidance.

Published at the end of March by a team comprising the Better Regulation Executive, National Audit Office and others, Effective inspection and enforcement: implementing the Hampton vision in the HSE rates the HSE in a largely favourable light, but criticises it on its use of intelligence and communication to inform its risk-assessment and inspection policy. It also suggests HSE guidance does not fully address the needs of its audience, and calls on it to do more to understand the extent to which its guidance is received and understood by business.

On the first of these issues, the review found:

– a lack of information and joined-up intelligence about the risk posed by individual firms;

– a lack of systems locally to make effective use of information gathered from visits;

– inadequate integration of the HSE’s topic-based approach with other types of risk; and

– an inability to effectively capture inspectors’ views and initiatives, owing to an apparent disconnection between HSE headquarters and the ground.

The report does, however, credit the HSE with introducing a Fine Tuning Review during 2006, in order to address many of these issues.

An HSE spokesperson told SHP: “We welcome the publication of the Hampton Implementation Review and are pleased to see HSE successes highlighted. Considerable work has also taken place on the issues identified in the review.

“The project to implement [the Fine Tuning Review’s] recommendations includes plans to improve targeting and intelligence by developing a regional intelligence officer role and making better use of information from sources, such as complaints from the public and intelligence from local authorities.”

Better information and intelligence could also enable the HSE to focus more of its resources on regulating businesses that fail to report incidents, says the report.

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