Health and Safety
Executive / Commission
Legal & Enforcement
Priorities for enforcement of section 3 HSWA are set out in HSE's priority programmes and
HSE's incident selection criteria 
. HSE will also give priority to areas where there is a high level of risk involved or in the interests of justice, including those of the injured or bereaved. To enable HSE to meet these priorities, HSE will give less priority to the enforcement of section 3 in the areas below.
The Department of Health, and bodies such as the Commission for Health Improvement (CHI) and equivalent bodies in Scotland and Wales, regulates standards of clinical governance, including systems of work, in healthcare. For example, issues such as healthcare associated infection are addressed by CHI and other agencies during visits to healthcare establishments. Similarly, doctors, dentists etc are regulated by other bodies e.g. General Medical Council (GMC) and other legislation applies to cases of clinical misconduct including manslaughter/culpable homicide or offences under the Medical (Professional Performance) Act 1995, under which the GMC operates.
However, it is intended that HSE will continue to deal with the major non-clinical risks to patients such as trips and falls, scalding, electrical safety etc; and with some aspects of risks that apply to both staff and patients alike, such as some healthcare associated infection precautions. Such incidents are normally reported to HSE under RIDDOR. HSE will also continue to work with other enforcement agencies in areas where the boundary between "clinical risk management" and "health and safety management" may not always be clear.
HSE takes the lead on incidents involving work vehicles engaged in specific work activities on the public highway.
Otherwise, road traffic law is enforced by the police and others, e.g. the highways authorities and traffic commissioners. The police will, in most cases, take the lead in the investigation of road traffic incidents on the public highway. Incidents may, however, be referred to HSE where the police suspect that serious safety management failure was a significant contributory factor. The Association of Chief Police Officers (ACPO) has recently adopted additional guidance, developed in collaboration with DfT and HSE, to help identify such incidents.
Further guidance is set out in OM/2003/103, 'Work-related road traffic incidents: an explanation of circumstances where HSE may have a role to play' [PDF 70kb]
and OM/2003/109,
'Response to inquiries on work-related road safety [PDF 100kb]'
.
The Independent Police Complaints Commission (IPCC) is carrying out a study of incidents involving police vehicles in order to identify lessons that can be learned in relation to policy and practice. The role of HSE in the investigation of police road traffic accidents will be discussed with IPCC and other police bodies as part of the process of revising the HSE-Police Inspection Agreement. Inspectors should inform the Public Services Sector (Defence Fire, Police & Prisons Unit) if the police or IPCC contacts them in relation to an accident involving a police vehicle
In prisons, probation hostels, immigration detention centres and the courts (where the prisoner or detainee was under escort managed by the relevant service), HSE will only lead on investigations of deaths and harm to prisoners when the incident arises out of a work activity, eg work a prison inmate was doing, a transport accident, or due to the structure or fabric of the building.
The Prison and Probation Ombudsman (PPO) and the Independent Police Complaints Commission (IPCC) will deal with deaths or serious harm from self-harm by prisoners (including failed suicide attempts) or attacks by other prisoners. The PPO's inquiry discharges the state's duty to conduct a proper investigation into the death or near death of prisoners required under Article 2 of the European Convention on Human Rights (ECHR) which is set out in Schedule 1 of the Human Rights Act (HRA). Such inquiries are sometimes known as 'Middleton Inquiries'.
Self-harm / attacks that occur in police cells in England and Wales, are taken by the Independent Police Complaints Commission (IPCC). HSE has a protocol with the IPCC that sets this out.
Self-harm and attacks that happen in Ministry of Defence (MoD) facilities, eg military detention quarters will normally be dealt with by the police.
The situation is unclear for self-harm and attacks in facilities operated by Customs. It is understood that the PPO does have a role, but there is yet to be formal agreement on this.
In cases of uncertainty Inspectors should contact the Public Services Sector.
Enforcement responsibilities for health and safety on board aircraft are divided between HSE and the UK Civil Aviation Authority (CAA). Details of responsibilities are explained in a Memorandum of Understanding between HSE and CAA. Annex 8 in particular explains responsibilities for occupational health and safety of flight and cabin crew.
As a result of concerns about passenger health and safety issues, the Aviation Health Unit (AHU) was formed on 1 December 2003. Based at Gatwick within the Civil Aviation Authority's (CAA's) Medical Division, its main role is to advise government, through the Aviation Health Working Group (AHWG), on passenger and crew health issues. The Department for Transport (DfT) retains responsibility for any policy changes arising from health recommendations. The AHWG is an interdepartmental organisation, chaired by the DfT, with representatives from the CAA, Health and Safety Executive and the Department of Health. It meets every two months to discuss issues relevant to aviation health and was instrumental in the decision to form the AHU.
The CAA has certain responsibilities for flight and cabin crew occupational health and safety provision under the European Civil Aviation (Working Time) Regulations 2004 and has published CAP757 Occupational Health and Safety on-board Aircraft - Guidance on Good Practice, to provide UK airlines with advice on achieving compliance. )
There is a range of other bodies that inspect e.g. Maritime and Coastguard Agency, Environment Agency/Scottish Environment Protection Agency, British Waterways, local authorities, etc. The roles and responsibilities of the various organisations with responsibility for safety issues are set out in a Department for Transport report "Inland Water Safety - Final report of scoping study".
A Memorandum of Understanding between HSE, the Maritime and Coastguard Agency (MCA) and Marine Accident Investigation Branch (MAIB) sets out the legislation applicable, accident investigation and enforcement arrangements at the water margin. MAIB has the power to investigate accidents to boats in inland waterways and the people on them. MCA is responsible for enforcing the safety of boats used in navigation, including people on them, and the occupational health and safety of the crew.
Where reservoirs fall within the definition of 'large raised reservoir', HSE accepts that the integrity of the reservoir structure is assured through the provisions of the Reservoirs Act 1975.
The Reservoirs Act 1975 places a duty on local authorities to maintain a register of large raised reservoirs which can contain more than 25 000m3 of water above the natural level of any part of the land adjoining the reservoir. The Secretary of State appoints specialist engineers to panels set up under the Act. Panel Engineers are required to advise the undertakers on any aspect of the behaviour of the reservoir that might affect safety.
HSE will continue to enforce in respect of any major hazard sites subject to planning controls, but will not involve itself in matters subject to local planning authorities or public inquiries.
HSE will continue to enforce and provide advice to planning authorities in respect of any developments at or within the vicinity of major hazard sites subject to planning controls.
The Mines and Quarries Act 1954 (MQA) s.151 concerns the fencing of all quarries whether in the course of being worked or not. Section 151(2)(c) deems a quarry to be a statutory nuisance under the Environmental Protection Act 1990 if: (1) it is not provided with an efficient and properly maintained barrier so designed and constructed as to prevent any person from accidentally falling into the quarry; and (2) by reason of its accessibility from a highway or place of public resort constitutes a danger to members of the public. MQA s.151 is not a relevant statutory provision under HSWA. However, HSE will continue to enforce Regulation 16 of the Quarries Regulations 1999, concerning the provision and maintenance of barriers, at active quarries.
Other specific legislation sets out the requirements on Councils etc as to the performance of their statutory duties including the remedies and penalties (if any) for failure to perform that duty.
We do not think that those responsible for the legislation governing the performance of Councils will have envisaged that HSE might become involved in its subject matter. And nor are they matters in which HSE has any particular expertise.
Any intervention by HSE would be to interfere in matters that fall within the province of another Secretary of State or another devolved administration and those affected by that legislation. Examples include, road gritting, management of social services child protection measures, failure to maintain roads/signage, effective policing, which are the subject of other regulatory regimes.
When people enjoy the countryside or other open spaces they owe a duty to themselves and their dependents to take proper care. Save in special circumstances eg managed landscapes such as parks, it is not desirable that access be restricted or that other measures be taken that diminishes the amenity from fear that an accident may result in prosecution.
Responsible risk-taking should be regarded as normal, and we should not discourage members of the public from undertaking certain activities solely on the grounds that there is an element of risk. Excessive paternalism and concern with safety may lead to infringements of personal rights. Those who are competent to judge the risk to themselves should be free to make their own decisions so long as they do not threaten the safety of others. The nature of these pursuits is such that, where there is an accident, a fault on the part of an employer cannot be presumed.
In addition to the duty on an employer in respect of their employees, section 4 of the HSWA, and certain health and safety regulations, impose duties for the protection of certain classes of persons in relation to the condition of premises. Where persons outside that protection are exposed to risks arising out of the condition of buildings or other structures, HSE inspectors will not ordinarily consider an investigation save in cases where death or serious injury has occurred and they are provided with a sufficient indication that a breach of section 3 was the probable cause or significant contributory factor. In many cases, local authorities are particularly well placed to act because of their specific powers under the Building Act etc and equivalent devolved legislation to deal with defective premises, buildings and structures.
HSE will not ordinarily investigate cases relating to the safety of consumer goods in cases where Part II of the Consumer Protection Act 1987 provides an adequate penalty.
* NB - A letter from the Secretary of State to HSC dated 7 October 1975 (the 'Foot letter') said we were not responsible for the structural safety of buildings or the safety of products sold to the public and the administration and enforcement of consumer protection legislation.