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May 13, 2010

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The HSE’s impact on Scotland

In a year of change for the health and safety landscape in Scotland, Paul Marshall tracks the development of the country’s dedicated Health and Safety Division, and considers what impact this will have on the enforcement regime north of the border.

According to the Health and Safety Executive, enforcement action in the field of health and safety has three main objectives:
• To compel dutyholders to take immediate action to deal with the risk;
• To promote sustained compliance with the law; and
• To ensure dutyholders who breach health and safety requirements, and directors or managers who fail in their responsibilities, are held to account for their actions.
In England and Wales, the HSE manages the entire range of enforcement action. When it comes to holding dutyholders to account, the HSE investigates, decides whether or not to prosecute, and conducts the prosecution. In Scotland, however, the approach is very different. The HSE’s role ends somewhere in the middle of holding dutyholders to account; at the conclusion of its investigation the HSE reports to the Crown Office and Procurator Fiscal Service (the Crown). At that stage the Crown steps into the shoes of the HSE. So, in Scotland, the Crown, not the HSE, decides whether or not to prosecute. And in Scotland, the Crown, not the HSE, conducts the prosecution.
Different strokes
The Crown will prosecute all health and safety offences in Scotland, but it will also prosecute every other crime or offence north of the border. In this way, the Crown’s local representative, the Procurator Fiscal, is the ultimate general practitioner. And yet health and safety law is a highly specialised area. In England and Wales, a specialist prosecutor, in the form of the HSE, investigates and prosecutes health and safety offences.
So, which approach works best? The HSE’s prosecution statistics for Great Britain for the last three years offer an answer. During this period, conviction rates in England and Wales have averaged at around 85 per cent, while those in Scotland averaged around 54 per cent.1 These statistics tend to suggest that an enforcement regime that combines investigation and prosecution under the one roof will produce a more effective prosecution regime.
Perhaps with an eye to conviction rates in Scotland the ministerial head of the Crown, the Lord Advocate, created a dedicated Health and Safety Division in Scotland with responsibility for the prosecution of all health and safety matters north of the border. The Division is sub-divided into three geographical areas – North, West and East – and consists of a group of lawyers with expertise and experience in health and safety. It became operational in January 2009 and was warmly welcomed by HSE chair, Judith Hackitt, who commented: “I am delighted to hear that this new Division is being set up [by the Crown]…our joint working in such specialised and sensitive territory can only be enhanced by having a dedicated team of lawyers involved…While HSE’s primary goal is to prevent death, injury and ill health occurring to those at work and those affected by work, effective enforcement is an important and powerful deterrent (author’s emphasis).”2
The establishment of this dedicated Division creates a set of specialist health and safety prosecutors in Scotland mirroring the specialist HSE prosecutors operating in the rest of Great Britain. So, it seems likely that the conviction rates in Scotland will, in time, come to mirror the rates in the rest of Great Britain.
Connecting the prosecutor
While prosecution is an important aspect of health and safety regulation, it is – as the HSE’s enforcement objectives and its chair’s comments make clear – only one aspect of the overall regulation and enforcement of health and safety. It is important that prosecution is used in a coordinated fashion together with the other tools in the enforcement bag, but can this happen when the prosecutor is “out of the loop”? Can it happen when the prosecutor stands at arm’s length from, and wholly independent of, the rest of the enforcement regime?
Although the new Health and Safety Division brings specialism to prosecution in Scotland, it remains a Division of the Crown, wholly separate from the HSE. In relation to health and safety offences – as opposed to cases of corporate killing – the HSE’s role in Scotland appears to be essentially unchanged. The HSE will continue to investigate health and safety offences and report these to the new Division for a decision on prosecution.
In short, the separation of investigation and prosecution between distinct agencies remains as before. However, the prosecution function in Scotland remains distinct from the rest of the enforcement regime managed by the HSE. Is this necessarily a bad thing?
Peter McNaught, the HSE’s Head of Litigation and Enforcement, assessed the unique position of the prosecutor in Scotland in evidence to the Justice Committee of the UK Parliament in February 2009.3 After acknowledging and welcoming the creation of the Health and Safety Division he went on:
“It is difficult to know whether the outcomes are better in Scotland compared to England and Wales. What is probably missing in Scotland compared to England and Wales is the connection between other action, which takes place as part of enforcement. A lot of work which is done by the inspector is in terms of giving advice and guidance and enforcement notices, and they have therefore a very good knowledge of where the benchmark is in terms of where action will bring about improvement in health and safety, without prosecution and where a prosecution is needed (author’s emphasis). Effectively, some of that will happen in any event before a case goes forward to the [Procurator] Fiscal for a decision on prosecution.”
In this eloquent summary of health and safety enforcement action, the HSE’s Head of Legal focuses on the importance of prosecution being part of a wider policy of enforcement. It needs to be connected to the entire body of enforcement action. What steps is the Crown taking to ensure the new specialist Division is connected to the wider body of enforcement action and, in particular, to ensure the new Division is connected to the HSE?
Still passing the baton
Peter McNaught refers to a benchmark for prosecution, and identifies the importance of the HSE’s experience on the ground to the decision to prosecute. However, in Scotland the Crown’s Health and Safety Division decides whether or not to prosecute and remains apart from the wider health and safety regulatory regime managed and operated by the HSE.
Before the creation of the new Division, at the conclusion of a health and safety investigation the HSE would advise that a report would be made to the Crown, and that the Crown – not the HSE – would decide on whether or not to prosecute. This separation of decision-making was not consistent with an integrated, connected enforcement regime. With this passing of the baton from the HSE to the Crown, the final decision on prosecution was taken by the Crown without the on-the-ground experience so valued by the HSE.
Does the new Division bring Scotland closer to an integrated regulatory regime of the type operating across the rest of Great Britain? At this stage, applying the “passing of the baton” test, nothing appears to have changed; the HSE and the Crown remain at arm’s length.
What does the HSE say of the impact of the new Division? In September 2009, its Board made brief comment on the practical effect of the new regime: “During the last six months the Lord Advocate has established a specialist health and safety unit within the [Crown]. This new unit is already leading to a closer dialogue with HSE. Individual [Procurators] Fiscal have been allocated desks in the Edinburgh and Glasgow HSE offices and work from there one day a week. The unit has already had its first successful prosecution and it is clear that timescales should be reduced with the greater specialist knowledge”.4
This is a useful snapshot of progress six months after the specialist Division’s creation. The HSE identifies improvement to the prosecution regime north of the border, but will closer dialogue and ‘hot-desk’ arrangements provide the connection to recreate the benchmark approach to health and safety regulation found in the rest of Great Britain, and as described by Mr McNaught?
A transformed landscape?
The creation of the Division was a key innovation in the prosecution of health and safety offences in Scotland, and one can now see the beginnings of a specialised prosecution regime but, as already noted, prosecution is only one of a number of enforcement tools available to regulators.
At this stage it is not clear what impact this new Division will have on the current separation of roles between the Crown as prosecutor and the HSE as regulator of health and safety in Scotland. Will the new Division help provide a more connected enforcement regime in Scotland? It remains to be seen whether the only “benefit” of the new regulatory landscape will be improved conviction rates for health and safety offences in Scotland. As the HSE continues to make clear, effective regulation requires much more than this.
1          From Enforcement action taken by HSE and Local Authorities in Great Britain where Region is known 2001/02-2008/09:
•           2006/7: England – 82%, Wales – 94%, Scotland – 64%;
•           2007/8: England 85%, Wales 93%, Scotland 49%;
•           2008/9: England 83%, Wales 75%, Scotland 48%.
2          Lord Advocate announces creation of Specialist Health & Safety Division –
3 cm200809/cmselect/cmjust/186/
4          ‘Significant Developments in Scotland’ – paper given by Paul Stollard to the HSE Board, Paper No: HSE/09/83
Paul Marshall is an associate with Brodies LLP and spoke on this subject in the SHP Legal Arena on Wednesday, 12 May

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