HEALTH AND SAFETY AT WORK

HC Deb 04 December 1974 vol 882 cc1839-54

6.23 a.m.

Mr. Greville Janner (Leicester, West)

I am glad to have the opportunity of raising the subject of the work of the Health and Safety Commission under the Health and Safety at Work Etc. Act 1974, and of the Executive, which is due to start its work on 1st January, which is only three and a half weeks away. On that dale this mighty Act will bring into force new and stringent penalties in respect of all existing legislation designed to protect employees at work. The new enforcement procedures, including improvement and prohibition notices, will come into effect and the entire new structure will be administered by the new Commission through the new Executive.

On 1st April, the Act itself comes into full force and will produce the most mighty changes in British industry of any Act this century which will remain permanently on the statute book. The Industrial Relations Act was more real and harmful in its day, but that day, happily, has turned to permanent night.

The Health and Safety at Work Act is almost identical to that originally produced by a Conservative administration. The amendments made by the Opposition when the Act was brought in by this Government are likely to be wiped out before long and the Act itself will be here permanently. With that new superstructure imposed on top of existing legislation and designed to curb the carnage of industrial accidents, it is vital to know how the Commission and the Executive will operate, particularly as that operation is due to start so soon.

I have an interest of sorts to declare, in that for several months I have been writing and lecturing about this Act. I have come to regard it as a potentially well-muscled weapon which can destroy at least some of the unnecessary suffering caused in industry. It can help avoid at least some of the deaths and wretchedness summed up in the Annual Report for 1973 of Her Majesty's Chief Inspector of Factories. In 1973 he tells us there were 272,518 reported accidents, of which 549 were fatal.

Over the course of the years thousands of our people are killed at work in circumstances which in some cases are completely avoidable. This Act will not put an end to death and injury at work. What it will do is to cut accidents and to enable the most stringent penalties to be imposed upon those who do not comply with their duties. Further, the Act will extend those duties across industry to hospitals, schools, broadcasting studios, theatres, concert halls, launderettes—to all those areas previously uncovered and unprotected.

The Act will extend the protection beyond employees, to neighbours, visitors and the general public. All the enforcements and penalties are to begin operating on 1st January. From that date infringements of the Factories Acts, even without any accident having occurred, could lead to imprisonment for up to two years and to a fine of unlimited amount. It is, of course not the intention that these penalties should be frequently imposed. On the other hand, it is vital that the Government should inform industry that the penalties are there and will inevitably be imposed if the law is flouted and unnecessary danger and death caused to workers or others.

What steps is the Minister proposing to take between now and 1st January to inform management in particular, and workers within industry, of the new penalties which the law imposes? These are penalties which in their way, are more powerful than any that have ever been introduced into this country with the intention of protecting those who would suffer through an infringement of the law. It is crucial that full information about the penalties be given immediately to the public, to act as a warning of what may happen if the safety rules are not complied with in future, as required by the Factories Acts, the Offices, Shops and Railway Premises Act, the Mines and Quarries Acts and all regulations made under this and similar legislation.

What plans does the Minister have for giving information to the public about the new Act in its entirety—those sections which come into force on 1st January and those which come into force on 1st April? Because the House showed such agreeable unanimity in the passing of the Act, because there was no great row and parliamentary outcry, because there were no redoubtable clashes across the Floor of the House which got into the headlines or on to the television screen, most people do not even know of the existence of the Act, which is certain greatly to affect their lives, and in some cases to save their lives.

But the Act will make more wretched the lives of offenders against the basic safety rules which should be complied with for the protection of workpeople.

I ask my hon. Friend next about the extent to which the Commission and the Executive have been set up. As far as I know, neither management nor labour has any substantial information as to the setting up and working of either body. We know that Bill Simpson is the new chairman of the Commission and that it is established. But what is it doing? What has it done? What precise steps has the Commission taken in order to start carrying out its functions on 1st January.

The Executive is set up under the Commission. What steps have been taken to create the Executive? Who are its members? With four weeks to go, we are entitled to know who has been appointed. Has anyone been appointed? What secretariat is the Executive to have? What is the money that is the subject of this part of the Consolidated Fund to be used for?

The Factory Inspectorate is presumably still to continue to enforce the new rules as it has done the old. Some individuals, in the main, will continue to do their jobs. The Act provides that the Executive shall be charged with enforcement and may delegate its powers to local authorities. Are those powers to be delegated, and, if so, how?

The Executive itself retains enormous authority. Is it to be used? I hope that my hon. Friend will be able to supply me with one figure. How many extra factory inspectors are to be appointed? By using simple arithmetic, which is as distorting as most statistics, it would appear from the Chief Inspector's report that each factory is likely to be visited once in every year. In fact, I understand that because some factories and workplaces are visited very often, others are visited scarcely at all. Indeed, the average workplace may be visited perhaps only once in four years.

In these circumstances, the Act is likely to be self-regulating. What matters is that people should understand what is in it, and, individually as employers and collectively through trade union representatives, ensure that safety measures are satisfactorily worked out and enforced within their own units. But enforcement will be necessary from the outset. The existing number of inspectors will not suffice. Once in every four years is not enough to visit even the best-regulated workplaces so as to keep management on its toes.

What is being done to ginger up the inspectorate and to strengthen it so that it may perform its work much better under the new rules than it has been able to do under the old?

Next, the inspectorate itself is acquiring new powers, some of which are far more potent than industry realises. For example, an inspector may seize and destroy any article or substance which he regards as presenting an imminent danger to life or limb. If he does so incorrectly, he could himself have to bear the cost of his mistake.

But what of the cost of prohibition notices wrongly served? Suppose an inspector considers that a particular industrial process is dangerous and creates an imminent danger of serious injury. His duty will be to serve one of the new notices, a prohibition notice, a form of procedure that comes into effect on 1st January. The unfortunate industrialist or management has to comply with that notice, on pain of potential imprisonment for two years. Those who receive the notice have a right to appeal to the industrial tribunal, and the tribunal may, if it sees fit, rule that the prohibition notice shall be suspended, or that it shall not apply, or that it shall apply only with variations.

If the prohibition notice is correctly served, that is the end of the matter so far as the law is concerned, and the industry or the management in question will have to change the process, or alter the machine, or scrap it or, indeed, as happened in the Flixborough case, close down altogether. But what if the prohibition notice is incorrectly served? In that case, the process will have been halted in its tracks for hours, or days, or even weeks, before permission is given for it to restart. The cost to the industry or company may be enormous, and the cost will include, in many cases, the laying off of employees, and possibly their permanent unemployment.

I ask my hon. Friend to tell the House who will bear that cost. The Act provides that the inspector may be indemnified, but are the public then expected to pay the cost? Or is the industrialist to bear it himself? These questions require answers before 1st January, because that is when the new enforcement procedures including the prohibition notices, come into effect.

If an improvement notice is served the situation is not nearly so serious, because the effect of the appeal will be to suspend the operation of the notice. But an operation that is prohibited can cause great chaos within an industry or an individual unit.

If that notice is justified, it is right that it should have been served, because the service of it may itself save life. But if it is wrongly served, industry is entitled to know what the Government consider would be its rights to remedy the wrong to which it would have been subjected.

Finally, the appeals are made to industrial tribunals. They have had a somewhat chequered career, starting as redundancy tribunals, spreading to deal with unfair dismissal cases, having to deal with them without the benefit of trade union members, having been weakened at a time when they needed strengthening, and now being strengthened again by people with shop floor experience. Now they are to deal with appeals under this Act. Under the employment protection proposals they will acquire still further powers and duties. Under the Equal Pay Act they will, as from the end of the coming year, have still more burdens to bear. I ask my hon. Friend to tell the House what plans have been made by the Government for the strengthening of these tribunals, so that they can do their job properly.

Also—this is of great importance to workers in industry—what consideration has been given to the provision of legal aid to these people who appear before industrial tribunals? There are cases in which, if the tribunals uphold a certain decision, it may in due course involve prosecution not only for management but also under Section 7 of the Act for the person concerned.

Clearly this Act is intended to impose new duties, in the main, on management, and new penalties on directors, secretaries, managers and others who act in that capacity. But it also provides exactly the same penalties for employees who do not co-operate in the carrying out of safety measures for their own protection and for that of others. In those circumstances, when both employers and employees are to be required to take new safety measures and to carry out the old measures with renewed enthusiasm, I ask the Minister what he is doing now to prepare the way for 1st January and 1st April. These are important questions. They deserve an answer, and I am sure my hon. Friend will provide one which will satisfy the House.

I should like publicly to pay a tribute to my hon. Friend and his team for bringing in this statute and for the work which I know they are doing in order to see that it is implemented. The Act is a magnificent result of the work of my hon. Friend, and when he retires in 20 or 30 years, or moves to another place, he will always be able to look back with pride at having been instrumental in producing an Act which should save so many lives and do so much good in industry. But to create the structure is only the beginning. What we now need to know is how that structure is to be kept alive, and how it is to operate in everyday practice as from 1st January.

6.43 a.m.

The Under-Secretary of State for Employment (Mr. Harold Walker)

I am grateful to my hon. and learned Friend the Member for Leicester, West (Mr. Janner, for his kind and generous remarks. I also congratulate him on bringing a freshness and briskness to our debates, for which, after a long hard night, I envy him.

I am glad that my hon. and learned Friend stressed the importance of this Act. He equally recognised that our understanding and appreciation of its importance has not been as widely shared and understood as one might hope. He described it as a mighty Act, bringing in great changes, and he referred to it as being a permanent feature of the statute book, unlike some of the other Bills which we have debated in recent years, which have been the focus of a tremendous amount of public attention but none the less have been of a transitory nature and have had an ephemeral life. As he says, this Act is here to stay. It is a mighty new superstructure which has been superimposed on existing legislation.

I welcome the enthusiasm that my hon. and learned Friend has for the legislation—an enthusiasm that he has brought to the debate. He asked a number of questions, which I shall try to answer. If, because of ignorance or omission, I fail to answer any of the points, the Department will write to him to rectify the error.

Perhaps I may usefully start by explaining what may be described as the latest state of play. The Act received the Royal Assent on 31st July this year and we made an order for its commencement on 27th August, bringing in the provisions of Parts I, II and IV in stages. Some of the provisions take effect on 1st October, some on 1st January next and the remainder on 1st April 1975.

The 1st October provisions established the Commission. On 1st January it will take over most of the existing health and safety at work responsibilities and functions of various Ministers. The Executive will become operational and the staffs of the main health and safety inspectorates, together with the Medical Advisory Service and the Safety in Mines Research Establishment, will be transferred to the executive. The new powers and procedures under the Act will be brought into use on that date—and that includes the power for inspectors to issue improvement or prohibition notices with arrangements for appeal to industrial tribunals.

I welcome the stress my hon. and learned Friend placed on the new and severe penalties provided by the Act. It has been a source of understandable criticism that the Factories Act, for example, provides for a maximum penalty of £300. The Act that we are discussing provides for a maximum of £400 on summary conviction, in line with the magistrates' courts' legislation, but unlike the Factories Act the new legislation provides for prosecutions to be taken on indictment for which the penalty is either an open-ended fine or, as my hon. and learned Friend said, a penalty, for some offences, of up to two years' imprisonment. These are severe penalties compared with those already operating.

At 1st April next year the remaining provisions in Parts I, II and IV will be enforced. The inclusion of the general obligations will have the effect of bringing fully within the scope of the Act all persons who work—employers, employees and the self-employed, excluding only private domestic servants. Protection is also provided for the first time for members of the public where they may be affected by the activities of people at work. This brings about 5 million workpeople into statutory protection for the first time, including, for example, workpeople in educational and medical establishments.

The chairman of the Commission and six members from the TUC and the CBI were appointed immediately the first provisions took effect on 1st October. Two other members, representing local authorities, were appointed in mid-November. There is still one vacancy, because the Act provides for the Commission to be composed of nine members in addition to the chairman. We have sought to make the commission as representative as possible. The local authorities are represented because they are substantial employers and because they are enforcement authorities. I hope that my hon. and learned Friend realises the difficulty of trying to make the last appointment of someone who is as representative as possible of the various groups and organisations for which we have not yet been able to provide in the Commission. We have invited a large number of organisations to consider people who might make a contribution and play a useful role in the Commission, and so the remaining place is yet to be filled.

My hon. and learned Friend asked what the Commission had done so far. It has met eight tunes in the last two months and it will be meeting for the whole of Thursday 5th December. It has been considering its broad policy objectives and the guidance it will want to give to the Executive when it is appointed on 1st January.

Among the matters that have already been considered by the Commission are enforcement policy, the financial and manpower requirements of the Executive for the next financial year, and the allocation of enforcement work between local authorities and the Executive. It also proposes to consider, before the end of the year, its policy on the appointment of workpeople's safety representatives and the disclosure of information by inspectors. In addition, it has considered the structure of the advisory committees that it will need to help it carry out the functions, although it has not yet decided what structure is appropriate. It is looking for a way to involve industry more effectively in improving industrial health and safety, and has decided to set up immediately an expert committee to advise it on major hazards. It hopes to be able to make an announcement shortly about the membership of the committee.

My hon. and learned Friend asked for details of the membership of the Commission. The nominees who have been appointed on the submission of the TUC are Mr. Terence Parry, Mr. Glyn Lloyd and Mr. Peter Jacques. Representing the CBI are Mr. Martin Jukes, Mr. Ray Richards and Mr. Martin Cobb. The names of the local authority representatives are Mr. Frank Bushell and Mr. James Anderson.

My hon. and learned Friend also asked for information about the executive. I must ask him to be patient a little longer. We are about to make an announcement, but one or two details are still to be decided. That is what inhibits me from giving a fuller statement.

Another of my hon. and learned Friend's questions concerned the steps we are taking to give wider publicity to the Act and its provisions, and to the obligations it will impose on employers and workpeople alike and on the self-employed, and publicity in the interests of the public. I think that the Commission will wish to make one of its priorities an active and effective information and publicity service, designed to make the most effective impact on both sides of industry and the general public. A chief information officer has been appointed and a nucleus of information staff, backed up by my Department's information directorate, is already in post. The Commission and the Executive are setting up a comprehensive information branch.

During the transitional period close liaison will be maintained with the rele- vant information staff in the other Departments involved—the Department of Energy, the Department of the Environment, the Home Office and so on—so that the valuable expertise built up in those Departments will not be lost. The Commission will shortly consider its programme of publicity, using all the media to further both its immediate and long-term aims.

In the meantime, there has been a succession of Press announcements, and leaflets about the Act have been widely distributed throughout industry. Inspectorates and other bodies coming within the Commission's scope are providing extensive advice to industry on the subject, giving talks and taking part in seminars throughout the country. There is, among those who will be directly affected and those professionally engaged, a tremendous amount of interest, which I see manifested in the conferences and seminars organised by such bodies as the Industrial Society, employers' associations and the TUC and individual unions. I have been invited—I have been delighted to accept the invitations—to take part in a host of these media activities.

One of the obligations imposed by the Act is that companies will have to include in their annual reports to shareholders information about what they are doing on health and safety matters. Apart from the immediate obligations that it will impose on companies, this will generate an interest in the Act and the obligations it imposes.

Mr. Greville Janner

Is this obligation not subject to the making of regulations? My recollection is that the director's reports will have to contain this information only when the regulations so require. If that is so, are the regulations in course of preparation, or is this one of the other matters?

Mr. Walker

I shall refer to that point later, when I hope to clarify it.

In addition to the matter we have already discussed, the Act lays down an obligation on the employer to prepare and revise, as necessary, a written statement of his general policy in regard to health and safety arrangements and to bring such statements to the notice of all his employees. The point is subject to regulations, the preparation of which is in hand. There are also arrangements for a code of practice giving general guidance on written statements.

I was also asked about the delegation of enforcement responsibility. The Act provides that enforcement will be carried out not only by the Commission and its inspectorates but by local authorities and certain other bodies which will be acting on an agency basis, such as the National Radiological Protection Board, acting for the Health and Safety Executive. Regulations will need to be made under Section 18 of the Act defining the extent of local authorities' responsibility. We think that at this stage, although it is very largely a matter for the Commission, local authorities will undertake enforcement at commercial, as distinct from industrial, places of work. The Commission has given consideration to the allocation of the enforcement functions, and the local authority associations are being consulted.

I refer to those organisations which will be undertaking enforcement on an agency basis. These will include, for example, the Scottish Industrial Pollution Inspectorate—which is responsible for the enforcement of the Alkali Acts in Scotland—the Railways Inspectorate, the Pipelines Inspectorate, and the National Radiological Protection Board.

I was asked to indicate the strength of the inspectorate and the additional financial obligation arising from the new burdens imposed on the inspectorates by the Act, which calls for the expansion of the inspectorate, as foreshadowed in my statements when the legislation was discussed. In July 1974 there were 702 inspectors of factories in post. We anticipate that by April 1975 that figure will rise to 802 and that by April 1976 it will rise to 910. In respect of mines and quarries the July 1974 figure is 125 in post, remaining fairly static over the next few years. There were 77 inspectors of nuclear installations in post in July 1974, rising to 120 by April 1976.

We envisage that policy branches and inspectorate support staffs will rise from 960 in July 1974 to 1,046 by April 1976. In the Employment Medical Advisory Service, we envisage an expansion in both medically qualified and non-qualified personnel from 266 in July 1974 to 329 by April 1976. In the Safety in Mines Research Establishment, we envisage a modest expansion over the same period of about 18 personnel, and another modest expansion in the administrative staff covering legal, secretarial and corporate services and information, planning and statistical services. We propose to seek a further increase of 100 in the Factory Inspectorate by April 1976 over and above the figure I have just given, if they can be recruited. My hon. and learned Friend will recognise that it is not only a question of having the cash available but of having people available who have the right qualifications and the vocational dedication that we look for in inspectors.

My hon. and learned Friend asked about the nature of the inspections carried out and the period of inspection. He will know that in the 1920s the ILO made a strong recommendation that inspections of industrial premises should be carried out at not less than one-yearly intervals. We have never been able to achieve that. I do not know whether it has been achieved in other countries, but we have never had the resources to permit this. Given the enormous number of establishments now within the scope of the new legislation, it becomes less practicable than before unless Parliament is willing to devote a very much larger sum to an enormous expansion of the inspectorate, and we recognise that that is not on at present.

The Robens Report made recommendations about the kind of inspection carried out. It expressed doubts whether routine inspections of establishments of all kinds, irrespective of the degree of danger and risk inherent in the enterprise, was perhaps the right way. It recommended that there should be more in-depth inspection of establishments where it was known that there were specific dangers or greater degrees of danger than in others.

In pursuit of that objective, the inspectorate has embarked on an experiment which may lead to a reorganisation, depending on its outcome. There are two trial schemes in operation, one in the North-East, based on Newcastle, and the other in the South, based on Slough. The results of these trial schemes and the views expresed in representations which have been received about this reorganisation—some of them from hon. Members —will be taken into account when the decisions are made about the future structure and redeployment of the inspectorate. We hope that this happens before the end of February.

Mr. Greville Janner

Is it the intention of the Commission to change the form of investigation by the Factory Inspectorate? At the moment, the factory inspector tends to be a man of broad experience who will look over a factory in toto and advise, and, if necessary, institute prosecutions, rather than a specialist in a given subject It has been suggested that under the new Act it will be necessary to have specific specialists in, say, electronics or construction engineering, especially in those areas of construction engineering where there are many injuries. Perhaps a team of people would go to a site where accidents had occurred. Is there any intention of examining in this kind of depth the method of inspection?

Mr. Walker

There has been a natural tendency, in response to the changing technology of industry, for the specialist inspectorates to emerge within the existing arrangements. This will not only be carried forward into the future but will be one characteristic of the new unified inspectorate arising from the bringing in of inspectorates which, hitherto, have been connected with other Government Departments. I think immediately of the Alkali and Clean Air Inspectorate, the Mines and Quarries Inspectorate and the Nuclear Inspectorate. They will continue to have their specialist roles and specialist functions. Even within the Factory Inspectorate there has within recent years been a tendency to have specialist inspectors for chemical hazards and radiological hazards, for example. This trend will inevitably continue because of the changing character and the technological demands of industry, hence the need to have people who have skills in particular technologies.

I have repeatedly said in the House and elsewhere—this was one of my criticisms both of the Robens Report and of the proposed legislation presented by the Conservative Government of 1970–74, and is not a political point—that in recognising the inevitable limitations on the size of the inspectorate and the great difficulty of providing adequate monitoring and inspection of the working situations that will now come within the scope of the new Act, it seems that there can be effective monitoring only by having some augmentation, some supplement, to the Factory Inspectorate. That is why the proposals for workpeople's safety representatives were introduced after the recent General Election when the present Government took office. That is one of the significant changes which we introduced. I think that it will go a long way to meeting the gap that might otherwise have existed in our monitoring and inspection arrangements.

I am not suggesting that we shall look to the workpeople safety representatives to be an embryonic factory inspectorate or a surrogate factory inspectorate. However, because the representatives will know their own work situations and their own processes they will be able to monitor effectively. We shall seek to make arrangements that will enable them to have ready access to the Factory Inspectorate when there is a matter that should be brought to the notice of the inspectorate or when they need advice that is perhaps not readily available from other sources.

My hon. and learned Friend raised the point of the possible effect of misapplication of a prohibition or improvement notice, and particularly a prohibition notice. A notice may have been applied and it may have emerged that it was inappropriate—perhaps a misjudgment or error on the part of the inspector—thereby giving rise to losses on the part of the employer which he should not have incurred in all fairness and justice. My hon. and learned Friend was asking how an employer in that hypothetical situation could obtain legal redress.

My hon. and learned Friend with his knowledge of the law will know better than I the folly of me seeking in advance of such a situation arising to anticipate or suggest what a court might decide. In Section 26 of the Act there is provision which gives power to the enforcing authority to indemnify the inspector. I think implicit in that is a recognition that such a situation could arise. It could in such a situation be a matter for the court to decide, but clearly that section was drafted on the assumption that there is a real possibility of its arising. The sort of sum that could be involved in such a hypothetical situation will serve to ensure that prohibition and improvement notices will be issued only with great care and caution having been taken beforehand.

My hon. and learned Friend asked about the industrial tribunals and their composition in relation to dealing with appeals which may arise under the Act and, because of the particular nature of the appeals, their competence to deal adequately with them. I do not know whether my hon. and learned Friend has seen the statutory instrument that was laid before the House on 28th November.

Mr. Greville Janner

I have seen it. I know that they have the powers. I was asking whether they would have the number and the strength.

Mr. Walker

I understand that the Council on Tribunals—I think that is what it is called; my hon. and learned Friend will know better than I—because there is this provision in the statutory instrument to which I have referred, will have the assistance of assessors who will have the appropriate background, experience and knowledge, and that consideration is being given to drawing up a panel of other people with the necessary knowledge and experience.

I hope that I have dealt with most of the matters raised by my hon. and learned Friend. His final question, to which I have not yet responded, was what consideration was being given to the provision of legal aid for those appearing before tribunals. We hope that the tribunals will continue in the informal way which has characterised them so far and that it will not be necessary in this kind of situation to have legal representation. My hon. and learned Friend will know that the chairman has to be a legally qualified person, and he can very often be relied upon to give legal advice when necessary.

I see that my hon. and learned Friend is shaking his head in some reluctance to agree to that point. If he feels strongly about this matter, I shall certainly draw it to the attention of the Lord Chancellor's Department.

Mr. Greville Janner

I am much obliged to my hon. Friend.

Mr. Walker

I hope that I have covered the points raised by my hon. and learned Friend. I apologise for having detained the House for longer than is cither advisable, perhaps, or in the interests of hon. Members at this hour.

I conclude by expressing my gratitude to my hon. and learned Friend for raising this matter. It has enabled us once again to focus some attention on what I agree with him is a crucially important matter. He was expressing the view that there had not been the kind of interest for which one might have hoped for such an important measure. I recall my own words on Third Reading of the Bill which became the Act. I said: It is a matter of deep regret to me that the world at large showed little awareness of the existence of the Bill or its significance until disaster shattered the life of a happy and peaceful little Lincolnshire community. The horror of Flixborough has, I believe, seared into everyone an awareness of the dangers with which we live and work. I hope and believe that it has completely scourged any complacency about health and safety at work. It may be grim consolation to the tragically bereaved families."—[OFFICIAL REPORT, 18th June 1974; Vol. 875, c. 417.] but let us hope that the measure we sent for implementation to the Commission and the Executive will ensure that we never have such a tragedy again.

I wish my hon. and learned Friend every success with his book, because I am sure it will help industrial health and safety.