Reflections on Robens – fifty years after

Unravelling the maze

Kevin Myers – with support from David Ashton, David Eves, and David Snowball

May 2022

Contents

Chapter 1 – Introduction

1. The Robens report, published in 1972, led to the introduction of the Health and Safety at Work Act 1974 (HSWA), the creation of the Health and Safety Commission (HSC) and the Health and Safety Executive (HSE) all designed to introduce a new approach to the prevention of harm to workers and the public from work activities. Many things have changed in the 50 years since the report was published, but in reading it again after many years it is interesting to note just how profound (and enduring) its main conclusions and recommendations have proved to be.

2. The report contained 35 separate recommendations set out in Chapter 18[1]. Robens observed:

“If our recommendations are accepted, their implementation will be a very formidable legislative, administrative, and organisational task. A great deal of complex work and careful planning will be necessary. We have already pointed to the difficulties of making progress where so many governmental departments are affected and involved. To begin by submitting our proposals to the normal process of detailed inter-departmental consultation would simply be to lose them in the very maze we have sought to unravel.[2] We would therefore suggest a programme of action along the following lines……”

3. The recommendations are mixed in nature. Some contain principles or statements of an underpinning philosophy, others set forth a legislative, administrative, or operational framework. Some recommendations themselves are a mix of the above and many of the administrative or operational recommendations were clearly intended to support delivery of the wider “philosophy”. To fully understand the rationale for, and the nature of, the philosophy the report needs to be read as a whole and not just through the lens of individual recommendations. However, reading the companion paper, Why Robens?, is a good alternative.

4. The “philosophy” could be summarised as:

  • a goalsetting, outcome-based, regulatory framework
  • the person who creates risk is responsible for its management and control…
  • …… in consultation with those exposed to risk…..
  • a regulatory system that places more emphasis on “self regulation”[3]
  • creation of a new regulator to establish and promote this framework, but also to hold to account those who do not deliver

5. In the context of reflecting (and particularly in looking forwards) on the impact of the Robens report on the development of the current “OSH system” in GB, we thought it would be useful to try and answer the question as to whether and how the report’s recommendations were implemented. We have yet to find a document which does this.[4]

6. This paper sets out to do this – with the following caveats:

  • Some of the recommendations are far reaching but relatively straightforward to implement in the Act (but of course having a requirement in law does not guarantee automatic “compliance” with the legal duties or administrative functions set out). Other recommendations are more administrative – but some are far from straightforward (both to implement and to give a simple ‘yes’ or ‘no” as to whether they were implemented);
  • Many of the individual recommendations are linked, and this complicates the process of commenting on each individual recommendation;
  • In his evidence before a Select Committee in 1982 (looking at achievements of HSC/E since Robens[5]) Bill Simpson (HSC’s first Chair) was quite clear that the HSC viewed its role as discharging its responsibilities as set out in the HSWA rather than going systematically through the recommendations in the report;
  • This report is written from the perspective of former HSE staff. We have tried to be objective, legal, decent and honest, but to quote Wilde: “The truth is rarely pure and never simple”.[6] Other observers may have a different take on some of our analysis.

7. We haven’t attempted to provide a perspective on what happened over the past 50 years on each of Robens’ recommendations[7]. We have focused on whether or not each recommendation was implemented – at the earliest point in time when it was possible to answer that question. We only comment on subsequent developments relevant to a recommendation when they bear directly on its implementation.

Note: The recommendations are not numbered. The Robens report sets out a “Summary” of what it saw as the key recommendations in Chapter 18. In this paper we use the paragraph numbers in that chapter to reference the recommendations.

Chapter 2 – Safety and health at the workplace

460. Safety and health activity at the workplace needs a central focus. Employers should be required to set out written statements of their safety and health policy and provisions. These statements should be made available to all employees.

8. This recommendation was implemented by virtue of section 2(3) of HSWA.

9. The legal requirement to produce a written safety policy statement was the trigger to establish and describe the practical managerial arrangements to deliver it (see also 461 below). Establishing an overarching policy statement is now a more common approach in various policy areas through, e.g. ISO[9] standards on a range of issues (quality, environment, risk management and occupational health and safety (ISO 45000)).

10. In 1980 HSE published guidance entitled “Effective policies for health and safety” based on a review of practice and experience within a wide range of industries. Initially, HSC/E resisted requests from businesses to provide a template policy because they believed the real value was delivered through the thought and assessment process involved in preparing the policy statement, not the document itself. It wanted to avoid a “cut and paste” process that just produced some paperwork to “comply” with the requirement but added no value – an approach which was implicitly criticised by Robens. This policy was subsequently revised and guidance produced[10] following a Review of Regulation commissioned by the Minister of State (Michael Forsyth) and the need to provide guidance to support the introduction of the Management of Health and Safety at Work Regulations 1992 (introduced to implement the EU Framework Directive.[11] The guidance was primarily designed to support small and medium-sized enterprises.

461. Within firms, safety and health objectives and responsibilities should be clearly defined at the level of the boardroom, middle management, safety advisers, supervisors and operatives; and systematic prevention techniques should be employed.

11. This recommendation was implemented – but initially through guidance rather than legislation. However, there are two specific provisions in HSWA that are, in part, relevant to this recommendation:

  • s37 – where an offence by a body corporate is shown to be committed with either the consent/connivance or neglect of a director, manager, secretary, or similar officer they can also be held liable.
  • s 7 – places duties on employees to take reasonable care for their own safety (and others’) and to co-operate with provisions put in place by the employer. This is often misinterpreted as meaning an equal level responsibility to that of management. This is not the case, the prime duty remains with the employer.

12. In 1991 HSE published “Successful Health and Safety Management” (HSG 65) which provided authoritative, evidence-based, guidance relevant to the substance of this recommendation.

13. HSE also collaborated with the Institute of Directors to produce “Leading health and safety at work – Actions for directors, board members, business owners and organisations of all sizes” which covers these issues.[12]

14. The Management of Health and Safety at Work Regulations 1992 covered some aspects of this. These Regulations effectively restated provisions already set out, or implicit, in the HSW Act but in a way that could be seen to implement the EU Framework Directive (89/391/EEC).

15. Sectors covered by “Permissioning” regimes[13] need to explicitly cover these issues in the safety reports or safety cases they are required to prepare and submit to the regulator.

462. Safety and health at work is a matter of efficient management. But it is not a management prerogative. Workpeople must be encouraged to participate fully in the making and monitoring of arrangements for safety and health at their place of work. There should be a general statutory obligation on employers to consult with their workpeople on measures for promoting safety and health. Guidance on methods of consultation and participation should be provided in a code of practice.

16. This recommendation was implemented through the provisions of HSWA ss2 (4), (6) and (7) and associated Regulations. Regulations and Approved Codes of Practice (ACOPs – see recommendation 471 and paras 38-42 below) created in 1977[14] and 1996[15] cover this requirement for unionised and non-unionised workplaces respectively.

463. Annual reports of registered companies should be required to include prescribed information about accidents and occupational diseases suffered by the company’s employees, and about preventive measures taken by the company.

17. S79 of HSWA made provision for the creation of regulations to give effect to this recommendation. Those powers were never used and the provision was repealed in 1985.[16] HSE has, over the years, encouraged public reporting on health and safety performance on a voluntary basis. HSE has carried out and published research to provide insight and benchmarking on the topic[17].

Chapter 3 – Action at industry level

464. Industry-level organisations, with their knowledge of the special problems of their own industries, have an extremely important part to play in the promotion of safety and health at work. A better mechanism is needed for linking up the efforts of the industry-level safety bodies with the work of the statutory services.

18. Consultation with relevant stakeholders, such as trade associations etc and Trade Unions became the default way of working for HSE in the development of guidance, policy and legislation, and the operation of the “OSH System”.

19. Several Topic and Industry Advisory Committees (IACs) were formally constituted and involved representatives from both (or all) sides of industry in developing and promoting standards and initiatives to deliver improvements in health and safety performance.

Topic Advisory Committees

Industry Advisory Committees

Dangerous Pathogens

Agriculture

Ceramics

Dangerous Substances

Construction

Education

Major Hazards

Foundries

Health Services

Medical

Oil

Paper and Board

Nuclear Installations

Printing

Railways

Toxic Substances

Rubber

 

20. HSE’s Factory Inspectorate (FI) established around 23 National Industry Groups (NIGs) to lead on external engagement with relevant organisations from both sides of industry and, internally, to develop operational policy and guidance for Inspectors. They also provided the secretariat for the relevant IACs. In these ways, HSE facilitated the implementation of this recommendation. There was active and enthusiastic participation by industry and union organisations.

465. There is scope for more collaboration between the CBI and TUC on this subject. Both should devote more resources to the promotion of safety and health activities by employer associations and trade unions.

21. This was encouraged and facilitated by the structure of the HSC and the various IACs established in the early years of HSWA (see para 19 above).

22. However, the world of work has changed significantly since the early 70s. The CBI and the TUC are not as representative of their constituencies as they were back then. Several issues are relevant: the changing nature of the economy; fragmentation of employers with the breakup of major companies and the increase in number of smaller employers; the reduction in numbers of trade unions and membership; and the impact of extended supply chains on modern work practices.

Chapter 4 – A new statutory framework

466. A national Authority for Safety and Health at Work should be set up. Present safety and health legislation dealing separately with factories, mines, agriculture, explosives, petroleum, nuclear installations and alkali works should be revised, unified, and administered by the new Authority.

23. A national Authority was established, albeit not quite in the way that Robens had recommended. The initial design of the new “Authority” differed from Robens’ template. Two legally distinct organisations were created – HSC and HSE. This different approach was taken for several reasons including the perceived need for the inspectorates to have operational independence from the various interests that were represented on the HSC. But additionally, and more significantly, the Inspectors and other staff were then employed as civil servants by a separate statutory authority (the HSE). This meant that far more discretion could be delegated to them to use the substantial powers the Act provided than would have been the case if they were part of a single Authority run by non-Crown servants (the Commissioners).

24. Discussions and policies concerning the unification and administration of the sectoral legislation has been a running theme throughout the 50 years since Robens. Paras 32-42 below are also relevant to this issue. The approach taken by HSC/E was to prioritise this task according to risk and need (such as to respond to legislative developments in Europe). Henceforth, all topic or issue-based secondary legislation was applied to all sectors. Sector-based legislation still had its place – but was the exception rather than the norm.

467. The Authority should have a distinct, separate identity, with its own budget, and full operational autonomy under the broad policy directives of a departmental Minister. It should have a comprehensive range of executive powers and functions. Statutory provisions formulated by the Authority should be laid before Parliament by the sponsoring Minister.

25. This was implemented in part. As explained in para 23 the Act created two distinct bodies – HSC and HSE – as Non Departmental Public Bodies (NDPBs). Both bodies were accountable to Parliament through the relevant sponsoring Minister. The bodies had operational autonomy – but were expected to comply with cross Government policies where appropriate.

26. The HSC was required to submit to the Secretary of State (SoS) “from time-to-time particulars of what it proposes to do for the purposes of performing its functions”[18]. This normally took the form of submitting its annual plan of work. Ministers have the power to “direct” HSC,[19] and the HSE (via the HSC)[20]; however, this power has never been explicitly applied. That is not to say that there aren’t informal or softer ways of influencing policies and priorities – not least because the SoS holds the purse strings. The HSC was explicitly barred from getting involved in any individual regulatory decisions/actions[21]. No such restriction was placed on Ministers in the original Act, but is now in place by virtue of s 12 (3) of the Act.[22] Ministers have historically not got involved with such matters – with or without any specific legal restrictions.

27. There was however a single budget initially allocated to the HSC for both organisations (the HSC Chair and the Director General/Chief Executive of HSE were both Accounting Officers for their respective shares of the budget). Ministers “laid” legislation in Parliament in the light of advice from the HSC (although the Act did not prevent Ministers from laying regulations that did not follow HSC’s advice). HSC was a small body and, by convention, was advised by officials working for HSE. HSE senior management attended its fortnightly meetings to present policy papers setting out proposals based on engagement and consultation with interested parties.

28. HSC and HSE were merged in 2009[23] to create an organisational model/structure that in some ways more closely resembled what Robens recommended. The considerations referred to in para 23 were not explored in the consultation documents which led to the changes – presumably because those changes had no impact on the civil service status of HSE staff. The main legal impact of the merger was to change the role of (what was previously) the HSC. Commissioners are now non-Executive Directors (NEDs) of the HSE, a role that places more emphasis on “governance” issues than policy development.

468. The Managing Board of the Authority should be composed of people drawn from relevant fields of experience and interest, so that the Authority can be seen as institutionalising a new policy for greater self-government in this field.

29. This was implemented by virtue of S10(3) of the original HSWA, which required Ministers to consult with organisations representing employers and employees in respect of appointing members to the HSC – with three “seats” for each. Traditionally the CBI and the TUC were considered to be the de facto organisations to be consulted. Following the merger of HSC and HSE, this provision is now contained in Schedule 2 of the Act. Membership also included a nominee representing Local Authorities who served a dual role of being seen to represent the ‘public’ interest and their important regulatory function in respect of “non-industrial” workplaces (see recommendation 479 and paras 66-70 below).

30. Governments’ approach to the appointment of members of the Commission/HSE Board has evolved over time. The merger of HSC and HSE has subtly changed the selection criteria alongside wider changes in governmental policies towards making public appointments.

Chapter 5 – The form and content of new legislation

469. The existing statutory provisions should be replaced by a comprehensive and orderly set of revised provisions under a new enabling Act. The new Act should contain a clear statement of the basic principles of safety responsibility. It should be supported by regulations and by non-statutory codes of practice, with emphasis on the latter.

470. A determined effort should be made to revise, harmonise and up–date the existing large body of detailed statutory regulations, to simplify their style and to reduce their number. A simplified consultation procedure is recommended.

471. As a general rule, voluntary standards and codes of practice provide the most flexible and practical means of promoting progressively better (rather than minimum) conditions of safety and health at work. In future, they should be used more extensively in supplementation of – and wherever possible in place of – statutory regulations. This change in emphasis should be accompanied by arrangements for increasing the impact and effectiveness of such standards and codes. Voluntary standards and codes approved by the Authority should be taken into account in inspection work and should be admissible in evidence in enforcement proceedings.

472. Statutory regulations and approved voluntary codes and standards should be kept under constant review with the assistance of an Advisory Committee on Regulations and Codes. Expert technical Working parties should be established ad hoc to undertake the detailed work.

31. These recommendations are so interconnected it would be unduly repetitive to report on them individually.

32. Recommendation 469 was implemented with one caveat about the use of codes of practice – see para 39 below. HSWA s2-7 sets out the clear statement of the basic principles of safety (and health) responsibility – it effectively translated into criminal law the key principles of the common law duty of care. The latter had developed and evolved over many years through case law and legal precedent. Section 2 has provided an enduring, clear underpinning legislative framework since 1974.

33. In respect of 470, HSC/E took a different view to Robens as to how to prioritise and address this issue. In evidence before the Employment Select Committee in 1982[24] the HSC Chair made it clear that its preferred approach was to prioritise contemporary areas/topics that required action and, where necessary, to update/repeal relevant existing legislation as part of that process. The HSC felt that to prioritise clearing the existing legislation would mean their efforts would be led by the discredited piecemeal approach they were established to replace.

34. Within this policy approach the HSC/E set about a process of reviewing and repealing the existing statutory provisions, although this proved to be a slow process, particularly after the change of government in 1979. There was also significant resistance by the mines industry to any attempt to up-date mining legislation, and this proved impossible until shortly before the industry all but disappeared.

35. The review/repeal/replace process further changed course in the mid 80s with the creation of the single market in Europe. This changed the legislative process for agreeing Directives[25] and significantly increased the volume and pace of their introduction. Additionally, both the European Commission and many other European countries preferred a more prescriptive approach than that envisaged by Robens. Henceforth HSE had less control of its programme of revision of the pre-1974 legislation as it had to take account of the priorities and issues agreed at the European level – and to invest significant resources seeking to influence these.[26] However the process of implementing Directives also gave impetus to the process of removing or updating the corpus of regulations.

36. In 1992/93 the Government commissioned a Review of Regulation as a ‘deregulation’ initiative (see also para 10). This reviewed every extant regulation for repeal, amendment, or replacement. The process was thorough, involved both sides of industry and was accepted by the Government. It concluded that there was a “very widespread support for the framework of health and safety legislation established in” HSWA. But that “health and safety law is still too voluminous, complicated and fragmented”. It set out 33 recommendations to address the latter conclusion. The process of review and replace has been an ongoing task since then with periods of concentrated activity flowing from various reviews over subsequent years.[27]

37. A simplified consultation process (as recommended in 470) was introduced along the broad lines recommended. This was largely delivered by virtue of the tripartite nature of the HSC, supported by tripartite topic and sector advisory committees (see para 19). That is not to say that all subsequent consultations were short or beyond criticism[28].

38. In respect of recommendation 471, HSWA was drafted to give the HSC power to agree Approved Codes of Practice (ACOPs):

  • s16 HSW gave the HSC power to approve ACOPs it had issued itself (s16(1)(a)) or proposed or issued by other bodies (s16(1)(b)).
  • s17 HSW provided that ACOPs could be used in legal proceedings as evidence of what is required to meet relevant obligations.

39. A number of ACOPs have been issued – although to support related Regulations rather than as an alternative to them.

40. Explicit provision was not made in the Act in respect of “voluntary standards”. However, both ACOPs and other standards were taken into account in inspection work and by employers. As the “OSH system” developed and matured, more use was made of “voluntary standards” as trade associations and other organisations became more committed and proactive – as set out in paras 18-20 above.

41. Over time the HSC/E made less use of Codes of Practice and the use of HSE “guidance” became more prevalent. ACOPs continued to cover some major areas but were slower and more cumbersome to produce (and amend) than guidance.

42. In respect of 472, the recommendation to establish an Advisory Committee on Regulations and Codes was not implemented. Presumably the establishment of the Topic and Industry Advisory Committees feeding into the HSC was deemed sufficient. It was part of their remit to keep relevant legislation, ACOPs and guidance under review. This function was also carried out by the NIGs (see para 20 above) for those industries without an IAC.

Chapter 6 – The application and scope of new legislation

473. The scope of the new legislation should extend to all employers and employees, except for a limited range of specific exclusions.

475. The legislation should not apply to the normal use of the highway, to domestic service, or to transport workers whilst actually engaged in transport operations. Special provision is needed for hospitals, schools and other educational establishments, and research laboratories.

43. The Act was drafted to deliver recommendation 473.

44. Section 51 explicitly excluded “domestic employment” from the scope of the Act.

45. No specific legal exemption was created for the “normal use of the highway” or for “transport workers whilst actually engaged in transport operations”. HSC/E has, as a matter of its policy in respect of the implications/scope of s3 HSWA and potential overlaps with other regulatory regimes, left this area to other enforcement organisations – primarily the police.

46. HSC/E’s policy in respect of road safety has been, and is, regularly challenged as being inadequate by some stakeholders – including the All-Party Parliamentary Group (APPG) for Transport Safety.

47. The Crown was subject to HSWA – but exempted (by virtue of s 48) from its enforcement provisions.[29] Thus Crown bodies cannot be prosecuted or issued with improvement and prohibition notices. However, special provisions were established to provide for HSE to issue Crown Notices and institute Crown Prosecutions which were administrative in nature but not judicial.

48. Hospitals, schools and other educational establishments, and research laboratories (and other sectors/activities) were called “new entrants” as they were covered by explicit health and safety legislation for the first time.[30] HSE commissioned a series of reviews of the nature and type of risks prevalent in a range of new entrant sectors to inform priorities and focus. NIGs (see para 20) were established to engage with representative bodies in some of these sectors and develop operational policy, guidance, and standards.

49. Whilst the sectors referred to in 475 were particularly mentioned in the Robens report, in practice challenging issues were also found more widely in the “new entrant” sectors – particularly the Police and Armed Services.[31]

474. The scope of the new legislation should also extend to the self–employed in circumstances where their acts or omissions could endanger other workers (employed or self-employed) or the general public.

50. S 3(2) HSWA delivered this recommendation.

51. This principle was challenged by the 2010-2015 coalition government. This led to changes in the HSWA to exempt self-employed persons from the Act unless their activities give rise to risks to others. The de facto implication of these changes was to maintain the status quo (because those self-employed who didn’t create a risk to third parties had no obligation in the first place!) – but was presented as a freeing of a significant number of self-employed from the scope of Act.

Chapter 7 – The inspectorates

476. The existing separate safety and health inspectorates for factories, mines, agriculture, explosives, nuclear installations and alkali works should be amalgamated to form a unified service within the new Authority. As a matter of explicit policy, the provision of expert and impartial advice and assistance to industry should be the basic function of the unified inspectorate. At the same time, tighter control over serious problems should be exercised through the more effective deployment and use of inspection personnel.

52. All the inspectorates listed were brought into HSE on vesting day, with one exception that joined after a couple of years. Two more joined in the early 90’s. Three inspectorates have since left HSE:

  • The Factories Inspectorate (FI) and the Mines and Quarries Inspectorate formed part of HSE from its initial creation in 1975.
  • The Alkali Inspectorate was also transferred into HSE. It was renamed the Industrial Air Pollution Inspectorate in 1983 but left in 1987 to join the newly-established Inspectorate of Pollution in the Department of the Environment. That Inspectorate was incorporated into the Environment Agency when it was established in 1996.
  • The Nuclear Installations Inspectorate was transferred into HSE in 1975. In 2011 it morphed into the Office for Nuclear Regulation (ONR) as a non-statutory agency of HSE in preparation for its establishment as an independent statutory corporation in 2014 by means of the Energy Act 2013.
  • The Ministry of Agriculture Fisheries and Food (MAFF) initially objected to transferring the Agricultural Inspectorate (AgI) to HSE and this did not take place when HSE was first set up in 1975 – but the transfer took place in 1977.
  • Following the Hidden Report into the 1988 Clapham junction train crash, the Railways Inspectorate was transferred from the Department of Transport to HSE in 1990. It left HSE to join the Office for Rail Regulation (combining economic regulatory functions) in 2004.
  • Regulation of the “petroleum” industry initially remained with the Safety Directorate of the Petroleum Engineering Division within the Department of Energy. This was transferred to HSE in 1991 on the recommendation of Lord Cullen in the Public Inquiry he led into the Piper Alpha incident.

53. A “unified” inspectorate, per se, was not established. Some proposals to do so were considered in the early years but they were not pursued. In written and oral evidence before the Employment Select Committee in 1982, Bill Simpson made it clear that the HSC did not believe a unified inspectorate was necessary or desirable.

54. HSE’s priorities in this area also evolved to focus not just on the “inspectorates” but to establish a more corporate understanding of the complementary elements of the organisation. This centred around a “Triangle” of Policy, Technology and Operations. The second iteration of this (prepared following some structural changes which made the first version out-of-date) is at Annex 1.

55. However, over the years, there have been numerous structural changes, and administrative arrangements put in place, to deliver more coherence, cross fertilisation and consistency of approaches where it was felt to be necessary and appropriate. The latter caveat acknowledges that there were some significant differences in aspects of sectoral legislation and underlying regulatory policy and philosophy. For example, the regulation of major hazard sectors covered by “permissioning” regimes (largely but not exclusively based around “safety cases”) require different approaches to other sectors like construction, agriculture and manufacturing.

56. In 1995 all the inspectorates were brought under the management control of the Deputy Director General for the first time.

57. The factories, agriculture and quarries inspectorates were gradually amalgamated through a series of managerial and structural realignments before being finally brought together as a unified “Field Operations Division”[32] (FOD) in 1988. In addition to these inspectorates, FOD included the Employment Medical Advisory Service (EMAS) and the creation of regionally-based groups of specialist inspectors under a single management command.

58. In 1996 the regulation of onshore major hazards was hived off from FOD and brought together with the Explosives Inspectorate and the Major Hazards Assessment Unit (see para 80) to create a Chemical and Hazardous Industries Division. This was subsequently brought together with Offshore, Mines, Pipelines, and Biological Agents to create a Hazardous Industries Directorate in 1999.

59. The nuclear and railways inspectorates were always free-standing inspectorates whilst they were within HSE.

477. Present inspection activities are too widely dispersed, and depend too much on routine visitation. The attempt to watch over everything means that the more serious problems may get less attention than they deserve. The resources of the inspectorates should be used more selectively. They should be concentrated on those areas where they are most needed and most likely to be effective. Priorities should be established by systematic appraisal and planning.

60. A rating system for workplaces was introduced in 1977 to inform planning and the frequency of proactive inspections by the Factory Inspectorate – which was responsible for the vast majority of businesses and workplaces regulated by HSE.

61. As the OSH “system” and regulatory intervention theory and practice developed over time HSE’s proactive interventions became more strategic, risk-based and thematic and driven less by a cyclical series of inspections of individual workplaces.

62. Different arrangements were applied in “high hazard, low frequency” sectors where licensing or “permissioning” regimes were in place and, in some cases, followed legal requirements that set out the frequency and scope of interventions.

478. This problem-oriented approach calls for a field structure of about 30 or so large Area Offices, each providing a wide range of skills and expertise corresponding to the needs of the particular area.

63. Between 1974 and 1976, HSE successfully trialled this approach in two locations and, in 1977, the 120 district offices of FI were reorganised into 21 Area Offices (with several local offices retained for efficiency reasons). AgI and the Quarries Inspectorate became co-located in these offices over time.

64. With the creation of the Field Operations Division in 1989 (see para 57), the field structure was reorganised into seven Regions – although the office locations largely remained in place for efficiency reasons. The HSE ‘estate’ has altered since the 1980’s in response to various issues including budget pressures and wider cross-government estate policies.

65. Some parts of HSE have remained concentrated in a small number of locations. These single industry inspectorates tended to be organised around a single HQ location or a few offices. For example, offshore work (since HSE became responsible for regulating this sector) has always been mainly confined to offices in Liverpool, Aberdeen and Norwich (and initially, London).

Chapter 8 – Inspection by local authorities

479. Local authorities have a very important part to play. Their work should be more effectively co-ordinated and integrated with the work of the Area Offices of the new national Authority.

66. Local Authorities (LAs) have continued to have a regulatory role for HSWA issues in certain lower risk workplaces (e.g. offices, shops, restaurants). Robens proposed dividing responsibility for regulation between HSE’s FI and LAs based on whether the premises were “industrial” or “non-industrial”. Initially LAs continued to operate under the previously existing shops and offices legislation and all “new entrants” (see para 48) fell to HSE to regulate. However, the Health and Safety (Enforcing Authority) Regulations 1977 started the process of moving the regulation of lower risk “new entrants” to LAs.[33]

67. In terms of workplaces and workers covered, the regulatory role of LAs has grown over the years as they regulate large sections of the Services economy. However, the challenge of co-ordination and integration is an ongoing and evolving activity – not least given that many LA inspectors have a wider set of regulatory responsibilities for matters such as food safety, air quality etc.

68. A national network of enforcement liaison officers was initially established by HSE (in each of its 21 FI Areas) to ensure that the overall system of regulation worked smoothly and provide a two-way flow of advice and information between LAs and HSE.

69. A national forum for collaboration between HSE and LA associations was established in 1975. This sought to consider enforcement standards and issued agreed advice to LAs about this and other regulatory matters. The arrangements for strategic oversight evolved but for many years were through an HSE/LA co-regulatory partnership (HELA) chaired jointly by a senior HSE official and the Chair of the Local Authority Health and Safety Practitioner Forum.

70. In 1982, HSE established a Local Authority Unit to co-ordinate HSE’s relationships with LAs. It provided a means for effective communication between HSE and LAs, promoting and monitoring the consistency, proportionality and targeting of LA regulation, and, where required, it provides guidance.

Chapter 9 – Sanctions and enforcement

480. Where the pressure of sanctions is needed to ensure rectification of unsatisfactory conditions, a range of alternatives should be available to the safety and health inspector. In the majority of cases, administrative sanctions of a constructive nature are to be preferred. These should take the form of Improvement Notices and conditional Prohibition Notices issued by inspectors and subject to appeal before industrial tribunals. Higher fines should also be provided for.

71. The recommendation about “administrative” sanctions through the issue of Improvement Notices and Prohibition Notices was implemented through sections 21 and 22 HSWA respectively. However, the term ‘administrative’ is misleading as a failure to comply with the terms of a Notice is a criminal offence by virtue of s 33(1)(g) of the Act. S24 of the Act provided for appeals against notices to an industrial tribunal.[34]

72. The option of issuing such enforcement notices proved to be a very effective and successful innovation. The alternative, in the pre-HSWA legislation, of securing a court order was resource-intensive, bureaucratic, and lengthy. Consequently, only a handful were issued in any year. The numbers of enforcement notices issued has varied over the years but grew to a volume of thousands. Only a small percentage of these were appealed against and only a small percentage of appeals were successful.

73. HSWA itself didn’t make explicit provisions for higher fines. S33 of the Act dealt with fines, but their level was determined by Law Officers (now the Sentencing Council). For convictions on indictment (heard at the Crown court), there was no upper limit. For summary convictions (heard at Magistrate’s Courts) fines were up to the maximum that such courts could award at any given time. The issue of higher fines has been taken forward over the years as part of a broader policy debate on this topic. This has led to increasing levels of fines being available to courts. Nowadays the Sentencing Council provides guidelines for use by Magistrates and Crown Courts in making judgements about the most appropriate level of fine (within the limits set by parliament) to be imposed following a conviction.[35]

Chapter 10 – Public safety

481. The new legislation should be so formulated as to ensure that the interests of the public as well as of employees are taken fully into account in measures dealing with hazards at workplaces. Special arrangements are needed to ensure adequate control over large-scale hazards to the public.

74. The first part of this recommendation was implemented by s3(1) HSWA. A suite of specific regulations was put in place to address the large-scale hazards (now known as “major hazards”) that Robens had in mind. These are covered in paras 80/81 below.

75. The impact of this change and subsequent policy and legislative developments led to a significant shift in the balance of HSE resources addressing wider public safety issues (although many of these would also address worker safety). In anticipation of this, in 1975, the Secretary of State for Employment (Michael Foot) wrote to set out where HSE should (and should not) focus its efforts. This ‘Foot letter’ was an attempt to put boundaries around the limits to HSWA Section 3.

76. Over time, the broad nature of the drafting of s3 has led to some challenging regulatory and enforcement decisions for HSE. These have included incidents relating to (for example): clinical judgement issues; deaths in custody; risks arising from natural features (such as cliffs, lakes); and hazardous leisure pursuits. See also para 48. Current HSE guidance on these issues can be found at https://www.hse.gov.uk/enforce/hswact/priorities.htm.

77. Over time HSE has been given further responsibilities for areas of public safety. In 1984 responsibility for gas safety was moved to HSE from the Department of Energy. HSE became responsible for regulatory oversight of the integrity of the (ageing, largely Victorian) gas supply network and the safety of gas installations in domestic premises. In 1996 responsibility for the regulation of pesticide safety transferred from MAFF. This work involved the approvals required before any pesticides could be sold and used.

Chapter 11 – Additional comments on particular topics

482. General fire precautions applicable to workplaces should be dealt with under the Fire Precautions Act, with enforcement based on the issue of fire certificates by the fire authorities. Special fire safety provisions against particular process risks should be made under the legislation administered by the Authority for Safety and Health at Work. Arrangements should be made for close liaison between the local fire authorities and the Area Offices of the central Safety Authority.

78. The policy in this recommendation was implemented (with a few caveats – see below) and remains largely in place today. Legislation and policy still seek to distinguish between process fire safety precautions and general fire safety precautions. The former falls to HSE for regulation and covers matters such as the use of plant or machinery or the use and storage of dangerous substances in the workplace. General fire precautions fall to (what are now called) the Fire and Rescue Authorities and cover matters such as the means for detecting, warning, and fighting fires, and the means of escape in the event of a fire.

79. This demarcation doesn’t apply to nuclear installations, construction sites and shipbuilding or repair. For such sites regulation of both process fire safety and general fire safety precautions rest with the Office for Nuclear Regulation (in the case of nuclear installations) or HSE.

483. The Authority for Safety and Health at Work should administer comprehensive provisions dealing with explosive and flammable substances. There should be a special ‘major hazards’ unit within the unified inspectorate and guidance from a standing Advisory Committee on Explosive and Flammable Substances.

80. This recommendation was implemented by establishing a Major Hazards Assessment Unit (MHAU) in HSE and creating an Advisory Committee on Major Hazards (ACMH). If any further encouragement for action in this area had been required it was quickly provided on 1 June 1974 when a massive explosion destroyed a large part of the Nypro (UK) Ltd plant at Flixborough, killing 28 people and injuring a further 36. More casualties could have been expected if the incident had occurred on a weekday.

81. Between 1976 and 1984 ACMH published three seminal reports which led to the development of the regulatory approach for major hazards. These “permissioning” regimes included the identification and notification of relevant sites, the provision for land use planning around them, and a requirement for sites to produce safety reports that were assessed by the regulator. The approach was influential in shaping subsequent EU Directives on such matters.

484. There should be comprehensive powers of control over toxic substances, allied to a general statutory obligation on manufacturers to ensure adequate safety testing of new substances before marketing them for industrial use. Anyone marketing a new chemical or other potentially harmful substance for industrial and commercial use should be required to supply basic information to the Authority for consideration by a standing Advisory Committee on Toxic Substances.

82. The general statutory duty on manufacturers was established through s6 (4) and (5) HSWA, which, over time, was supported by more detailed regulations concerning testing and placing of substances on the market. Much of this was led by Europe through a series of Directives which evolved over time.

83. An Advisory Committee on Toxic Substances was established to develop policy proposals in this area[36]. Its work led to the introduction of specific regulations that built upon the general duties to manage health risks set out in ss 2 – 7 HSWA and replaced provisions in the pre HSWA legislation. Regulations on lead were introduced in 1980, asbestos in 1987 and the Control of Substances Hazardous to Health Regulations (COSHH) in 1988. COSHH, amongst other things, explicitly required employers to carry out risk assessments[37] with a view to ensuring employees are not exposed to substances hazardous to their health. Where exposure to such substances cannot be prevented, the regulations require employers to provide control measures and suitable protective equipment. The regulations also cover: the maintenance, examination, and test of the equipment; monitoring exposure in the workplace; health and medical surveillance; and the provision of information, instruction and training on the precautions that should be taken to manage and control the risks.

84. The introduction of the various regulations (particularly COSHH) took some time for a number of reasons including delays in securing agreement from both sides of industry in the consultation process.

485. There should be an institutional link between the new Authority and the National Board for Radiological Protection (sic).

85. HSE established an Agency Agreement with the National Radiological Protection Board (NRPB). This was used to commission field surveys to provide HSE with technical information on the use of ionising radiation in industrial premises and other workplaces such as universities, hospitals and dental surgeries, as well as issues such as radon in non-coal mines and implementation of Euratom Directives.

486. Basic requirements on noise control should be included in the new legislation. Within the unified inspectorate there should be a specialist branch dealing with noise.

86. HSE had first published guidance on noise in 1972 and specific sets of regulations (such as for woodworking machines) had provisions in place for protection from the early 70s. An ACOP was subsequently produced and HSE introduced a programme of action on noise in 1983. Development of noise regulations was impacted by negotiations in Europe on a directive covering this topic. The Noise at Work Regulations were introduced in 1989.

87. A specialist team was established to lead on technical issues associated with noise – a mix of an HQ team and dispersed local specialists.

487. There should be a general statutory obligation to ensure that plant, machinery and equipment manufactured for industrial and commercial use is designed and constructed to comply with safety requirements; and powers to require compliance with particular standards and approval arrangements established by independent quality control bodies.

88. The general statutory duty on manufacturers in respect of plant, machinery and equipment was established through s6 (1), (2) and (3) HSWA.

89. The second part of the recommendation has been driven by evolving arrangements at the European level from the mid-80s onwards. The most recent iteration of this is set out in the latest Supply of Machinery (Safety) Regulations. These require that all machinery (and other products in scope), amongst other things: are designed and constructed to be safe (meeting all the relevant essential health and safety requirements set out in the regulations); have a technical file demonstrating this; have an appropriate conformity marking; and an accompanying Declaration of Conformity. The conformity marking arrangements have had to change following Brexit[38].

Chapter 12 – The organisation of occupational medicine

488. The new Employment Medical Advisory Service should function as part of the Authority for Safety and Health at Work, and should maintain close operational liaison with the National Health Service.

90. The Employment Medical Advisory Service had only recently been created by a 1972 Act (of the same name) to provide an advisory service on all health-related aspects of employment to all parts of the Department for Employment as well as direct to employers and employees. The Act came into force in 1973 and so EMAS was only just developing its working methods when it was incorporated into HSE in 1975 by virtue of Part II of HSWA. EMAS was initially a part of HSE’s Medical Division but incorporated into the Field Operations Division in 1988 (see para 57).

91. Operational liaison with the National Health Service was patchy, with often good local contacts, but no formal central mechanisms for co-ordination, largely due to recurrent re-organisations of the healthcare system

Chapter 13 – Training

489. The new Authority should play a promotional and co-ordinating role in safety training. It should actively participate in some neglected areas such as safety training in management courses. New legislation should contain broad powers for making regulations on safety training.

92. The impetus generated by HSWA and the establishment of HSE led to a significant increase in training provision within the “OSH system”.

93. HSWA powers were broad enough to create regulations on safety training. However, no cross-cutting training regulations were introduced – the general responsibilities included in s 2(2)(c), supported by more specific requirements in topic or sector-based regulations proved sufficient.

94. A range of different organisations included training as part of their role/remit, including safety charities and professional bodies and thus the training foreseen by Robens was largely delivered by the “market” through various NGOs and Trade Associations. In 1979 the National Examination Board in Occupational Safety and Health (NEBOSH) was created to provide a framework for health and safety (and environmental) qualifications. It now operates in over 100 countries.

95. More recently, HSE has itself started to provide training (through its Health and Safety Laboratory) in response to political pressure to develop commercial opportunities.

Chapter 14 – Research and information

490. The Authority should seek to promote a more co-ordinated research effort in occupational safety and health. It should have an adequate research capacity of its own, and powers to sponsor and support relevant external research. It should seek to ensure better dissemination of research results as part of an effective general information service.

96. Implementation of this recommendation started in 1975 with HSE bringing together various existing research-based organisations – the British Approvals Service for Electrical Equipment in Flammable Atmospheres (BASEEFA), the Safety in Mines Research Establishment (SMRE), and Occupational Hygiene Laboratory (OHL), to create a Research and Laboratory Services Division (RLSD). RLSD’s laboratories were integrated into one laboratory, the Health and Safety Laboratory (HSL) as an Agency of HSE in 1995.[39]

97. HSE was able to maintain an independent scientific and research capability throughout the period. At different points, this capability has been subject to market-testing and feasibility studies. More recently, this capability came to be seen by ministers as a possible source of increased revenue for the organisation – subject, of course, to rules about the proper use of public money.

98. HSE commissioned a significant volume of research from these laboratories and from numerous external organisations and research bodies on a wide range of topics to inform technical and policy development. This formed an important element of the “technology” side of HSE’s Triangle (see para 54 and Annex 1).

99. A Directorate of Information and Advisory Services was established and was very active in pushing and promoting information out to the wider “OSH system”.

Chapter 15 – Statistics

491. The new Authority should review the bases and purposes of the statistics currently published. Priority should be given to the task of devising a common report form so that employers would need to report an accident only once.

100. HSE built up its statistical (and economic) capacity and capability. This also formed an important part of the “technology” arm of HSE’s “Triangle” and became an integral and essential contributor to developing the evidence base which informed policy and operational priorities and development.

101. In the late 70’s a common report form was introduced for the purposes of notifying both the Department of Health and Social Security (DHSS) and the HSE of an accident. The form was submitted to DHSS who copied it, where appropriate, to HSE. This was not considered a great success and dual reporting was introduced again in 1980 through the Notification of Accidents and Dangerous Occurrences Regulations (NADOR).[40]

Chapter 16 – The costs of accidents

492. Study of the costs of occupational accidents has been relatively neglected. The new Authority should be suitably equipped to pursue research into costs and benefits in order to assist the development of a more cost-effective approach to the deployment of public resources for accident prevention, as well as to encourage and assist similar work by industry-level organisations and individual firms.

102. In 1993 HSE produced specific guidance for employers in the publication “The Cost of Accidents at Work” (HS(G)96. This was driven less by a need to implement a specific Robens recommendation than to get employers to recognise that there was a financial as well as social and legal imperatives for them to reduce accidents and ill health.

103. Originating in work done by an Accident Prevention Advisory Unit (APAU), which had been established in 1977, HSE published general and specific material on this topic over the years, enabling estimates of the total cost to the economy of poor management of workplace risk and harm[41]. The figures routinely ran into the billions of pounds.

Chapter 17 – Compensation and prevention

493. There should be a detailed study of possible ways of amending the statutory industrial injuries scheme so as to provide for differential rates of contribution from employers, based on the claims experience of their employees.

494. There should be an Inquiry into the present system of actions at common law for damages for injuries sustained at work, with particular reference to the deleterious effects of the present system upon accident-prevention provisions and activities.

104. The following year (1973), the Government set up a separate, judge-led Royal Commission to inquire into civil liability and compensation for personal injury (the Pearson Inquiry). This reported in 1978 and made radical recommendations for a no-fault insurance scheme for industrial and road traffic accidents. The recommendations were not implemented.

105. Policy responsibility in this area has always rested with the Department of Employment (or Work and Pensions) not HSC/E.

Conclusions

106. Drawing conclusions on whether the 35 recommendations were implemented is not straightforward – not least because many of them comprise two or three recommendations within them. However, the main conclusion to be drawn from this analysis is that nearly all the recommendations were implemented – and that actions to deliver the underlying principles of the Robens report and philosophy were clearly taken, despite the fact that not every recommendation was implemented as written. Given the scope of ambition and the mix of legislative, operational and administrative tasks which emerged, that looks remarkable in itself. It is easier to list the recommendations (or parts of recommendations) that were not implemented:

  • 463 – on the requirement for registered companies to include information about their health and safety preventive measures and outcomes[42];
  • 471 (part of) – explicit provision was not made for the approval of voluntary standards
  • 472 (part of) – a bespoke Advisory Committee on Regulations and Codes was not created
  • 476 (part of) – although the various inspectorates were brought into the new Authority they were never “amalgamated” to form a unified service (subsequently referred to in the same para as a unified inspectorate). This was an informed policy decision by HSC/E. The objectives underpinning the recommendation were however taken forward in various restructuring and administrative initiatives over the years.
  • 489 – the HSC/E didn’t pick up the “promotional and co-ordinating role” on training envisioned by Robens. However, other parts of the “OSH system” did.
  • 493 and 494 – although a Royal Commission was established to review civil liability and compensation, its recommendations were not implemented.

107. A third of the recommendations were implemented through the new Act – HSWA:

  • 460 – health and safety policies and arrangements
  • 462 – obligation to consult workers
  • 466, 467 and 468 – establishing a national Authority
  • 469 – setting out a clear statement of basic principles of responsibility
  • 473 – application to all employers (with limited exceptions – 475)
  • 474 – application to the self-employed
  • 480 – inspectors provided with powers to issue improvement and prohibition notices
  • 481 – explicit provisions in respect of public safety
  • 487 – obligations on designers and suppliers of plant, machinery, and equipment

108. Forty percent of the recommendations were implemented “administratively” and/or through secondary legislation in the form of regulations.

  • 464 – engagement of industry bodies
  • 465 – collaboration and promotion by the TUC and CBI
  • 476 and 477 – bring all separate inspectorates into the new Authority, and prioritisation and targeting of resources
  • 478 – establish a new field structure
  • 479 – regulation by local authorities
  • 482 – demarcation and collaboration on fire safety
  • 483 – developing a regime for major hazards
  • 484 – developing a regime for marketing and use of toxic substances
  • 485 – collaborating with the NRPB
  • 486 – noise legislation and technical competence in the new Authority
  • 488 – incorporate EMAS into the new Authority
  • 490 – research capacity, co-ordination, and dissemination, and provision of an information service
  • 466 – review statistical capacity and use

109. Some of the recommendations are less amenable to answering the binary question of whether, or not, they were implemented:

  • Recommendations 466, 470 and 472 all bear on the need to “revise”, “unify”, “harmonise”, “up-date” and “constantly review” secondary legislation. This was an ongoing task – the proverbial painting of the Forth Bridge comes to mind. The “constant review” was supplemented by comprehensive reviews of all the relevant legislation in 1992/4 and under the 2010 coalition Government (see paras 115-6) and several independent reviews;
  • Recommendation 479 on more effective co-ordination and integration of the regulatory work of local authorities is another ongoing task. Over the years there have been various arrangements and initiatives to deliver the consistency and proportionality Robens was seeking.

110. The major proposals to establish the new philosophy summarised in para 4 above were all addressed. Having cast the net so widely, the consequential work was significant, and Robens presciently drew attention to what this would entail. Many of the recommendations were linked and mutually reinforcing. The overall vision would otherwise have fallen apart had they been delivered in a piecemeal way, which was one of the key criticisms of the arrangements the report sought to transform.

111. Inevitably, this would all take time, and some recommendations were implemented after a gap of several years without any acknowledgement of their origins. This is not surprising given the comments by Bill Simpson (see para 6, bullet three) that the HSC took its lead from its duties as set out under HSWA rather than from the report itself. But that is less a criticism of Robens (or those responsible for implementing his report), than testimony to the farsightedness of the report’s recommendations and/or the groundwork involved in implementing them.

112. The recommendations are now 50 years old and both the world and the nature of work-related risk are very different. As Robens himself said: “Many problems will remain to be solved, and fresh ones will arise. The new framework that we have proposed will need to be kept flexible, and adapted to meet changing requirements”. This paper has confirmed that the main components of the Robens model remain intact and recognisable.

113. The core philosophy and the “system” it has created have been subject to numerous reviews and challenges in the intervening years. It is fair to record that most of the reviews have come up with their own recommendations for improving or updating aspects of how the system works in practice. We have not sought to consider these in any detail in this paper, because its focus is on the Robens report and the implementation of its recommendations.[43] However it is also important to note they have all concluded that the philosophy was sound and had the broad support of those responsible for working with the “OSH system” that has evolved since Robens.

114. In 2010 the Prime Minister commissioned Lord Young of Graffham to produce a report which considered both the “compensation culture” and health and safety. On the latter, his report – “Common Sense, Common Safety”[44] – observed:

The Health and Safety at Work etc Act is a very good piece of legislation. It provides a clear framework for the risk driven approach to health and safety. …………

There is no need for major changes to the framework provided by the Health and Safety at Work etc Act. Improvements to legislation are, of course, needed from time to time but the fundamental framework is still relevant.

115. In 2011 Professor Ragnar Löfstedt produced a report that had been commissioned by the Minister responsible for HSE. That report – Reclaiming health and safety for all: An independent review of health and safety legislation[45] – stated:

In March 2011 you asked me to look into the scope for reducing the burden of health and safety regulation on business, whilst maintaining the progress that has been made in health and safety outcomes

I have concluded that, in general, there is no case for radically altering current health and safety legislation. The regulations place responsibilities primarily on those who create the risks, recognising that they are best placed to decide how to control them and allowing them to do so in a proportionate manner. There is a view across the board that the existing regulatory requirements are broadly right, and that regulation has a role to play in preventing injury and ill health in the workplace. Indeed, there is evidence to suggest that proportionate risk management can make good business sense.

116. In 2013, a thoroughgoing “Triennial review” of HSE carried out in 2013[46] by Martin Temple (then Chair of EEF – the Manufacturers’ Organisation[47]) concluded:

A fundamental of Great Britain’s approach to health and safety is that it is based on the principles set out by Lord Robens that:

  • legislation should be goal-setting, not prescriptive
  • those who create risk must take responsibility for controlling it
  • requirements for controls should be practical and proportionate to the risk.

Since HSE was created in January 1975, it has led work to build on these principles and apply them in its regulatory work in the wide range of industries and risks in which it is involved. There has been massive change in the nature of Britain’s business base, patterns of employment and the demographic of the workforce. There have been major incidents, sometimes involving many fatalities, from which HSE and business have learnt. With business and unions, HSE has developed modern standards for risk assessment and health and safety management. Working in partnership with others, as intended by Robens, is at the heart of how HSE works. This approach has stood the test of time and there was near universal agreement that the Health and Safety at Work etc Act 1974 remains valid and is fit for purpose.

117. It is, of course, possible to argue, a priori, for and against the rationale of the Robens philosophy. The companion paper (What difference did Robens make? Analysing health and safety data across the decades) seeks to inform such a discussion. That paper demonstrates that the regime developed since the Robens report has contributed to the substantial improvements seen in workplace safety outcomes. The evidence is less clear on ill health – not least because we do not have a consistent set of data covering the full 50 years. However, the data does show improvements in occupational ill health generally as well as in various categories of ill health – with the exception of stress, depression or anxiety.

118. Many of the recommendations could be considered to be ‘eternal verities’ and their means of implementation are still relevant. Others might benefit from being applied or implemented in a different way to meet contemporary challenges such as the shift towards different interpretations of what the terms ‘employment’, ‘work’ or even ‘regulatory activity’ currently mean. Current means and speed of communication would, no doubt, have impacted on some of the recommendations.

119. This paper has restricted itself to considering whether each Robens recommendation was implemented (see para 7). Many of the recommendations have their own story as to how they have been delivered over the subsequent years. We hope to explore this further in subsequent work reflecting on the 50th anniversaries of HSWA and HSC/E in 2024/25.

Annex 1 – The Triangle: a restatement

January 1991

HSE’s organisation has changed in a number of ways since the original Triangle Statement was prepared, most significantly with the creation of the Field Operations Division. An understanding of the nature of our three main functions remains as important as ever: HSE cannot operate effectively unless each makes its proper contribution and all three combine effectively to achieve a wide variety of outputs in different ways. The Management Board[48] has therefore agreed the following restatement of the three functions represented by the Triangle.

Policy

The policy branches ensure that all advice given to the Commission is on a consistent basis and, after consultation with other divisions, advise the Commission on the future direction of its affairs. There are three policy divisions …….. – and in addition one policy branch in the Nuclear Safety Division and another reporting to the Director of Technology Division. These branches keep under review the state of health and safety under various heads and, as necessary, initiate changes in the Commission’s and Executive’s response. They maintain contact with other organisations, including Government and other bodies, both national and international, and seek to influence them on the Commission’s behalf. In addition, there are policy branches or sections within Resources and Planning Division; and the Executive Support Branch has the responsibility of directing attention to strategic questions. The Commission’s principal policy adviser is the Director General of HSE.

The policy divisions evaluate the effect of existing and new policies with the help of the field and technical divisions upon whose experience they rely in very many matters, in particular in judging the need for policy changes and the practical value or effect of policy proposals. Subject to the Management Board and the Executive[49], they are expected to stimulate, and as appropriate to co-ordinate, action both in pursuit of the Commission’s general aims where responsibility has not been allocated to other divisions, and were a combination of policy branch and operational responses are required to meet particular situations, though it is open to them to arrange for another part of the organisation to take the lead where for practical reasons this seems sensible. In addition to its policy functions, Resources and Planning Division manages and, accept where appropriate functions are delegated, plans an monitors the resource is made available to the Executive and Commission, and co-ordinates the machinery required each year to present resource bids to Ministers or otherwise to seek or modify available resources.

In relation to policy matters principally connected with the development of standards, Industry Advisory Committees (IACs) and the Commission’s Special Advisory Committees[50] advise the Commission directly and may, for example, propose new guidance or give advice on particular hazards or action to deal with them. In this context and in developing future IAC programmes, IAC Chairman need to keep in contact with the relevant policy branch so that wider issues can be taken into account.

The Field Operations Division has an important role in contributing to policy through the National Interest Group and IAC systems, and, through the assessment of plant and working systems (in conjunction with the Accident Prevention Advisory Unit), in the development, definition and communication of good industry safety practise. Though this work is a natural outcome of the pursuit of consistency in operational work, it needs to be carried out in consultation with relevant policy branches where it involves legal instruments or formal guidance; would lead to substantial expenditure by employers or raised wider policy issues; or have resource implications which the Commission would need to take into account

Field operations

The field operations function is concerned with the interpretation and implementation of new control packages and instruments, and of existing legislation and guidance. It is carried out by staff in the Field Operations Division itself, the Mines… Nuclear Installations.. Railways Inspectorate[51] and Technology Division. Staff in the operational divisions inspect and assess industrial activity and secure, through advice, investigation of incidents and, as necessary, enforcement, compliance with legal requirements and reasonable standards, interpreting and applying the latter so far as possible on a national basis.

Practical experience and direct knowledge of the facts of industrial life gained through the field operations function are an essential basis both of policy development and standards formation. The NIGs have a particular role in relation to specific industries or industrial activities. And, very importantly, staff in the operational divisions advise those responsible for policy development on the enforceability and practical acceptability of proposed measures and the need for new approaches.

The Employment Medical Advisory Service (EMAS) within the Field Operations Division complements and contributes to the function of inspection and advice, and itself inquires into and reports on the state of health in different industries and organisations so as to contribute to a better understanding of the causes of industrial ill health. Besides providing certain services to individuals, it co-ordinates and assists other medical services in the field.

All the Chief Inspectors have national representational rolls on HSE’s behalf. Field Operations Division represents HSE at the local level, both vis a vis the media and the public, and the other institutions including local authorities and another inspection bodies, calling upon other divisions for assistance where necessary.

Technological, Scientific and Medical

This function is responsible for promoting (and supplying) excellence in technological, scientific and medical advice to other parts of HSE and to Government on matters of industrial health and safety. These matters include the extent and nature of risks, the effects of hazards on individuals or the environment, and appropriate standards. Staff performing this function are to be found in Technology Division, Research and Laboratory Services Division and within Health Policy Division – the directors of which meet from time to time as the TSM group (TSMG) under the chairmanship of the Deputy Director General – and also in the Field Operations Division (particularly in the NIGs), the Nuclear Installations Inspectorate and the Railway Inspectorate[52].

That technological function involves special responsibility for the development within established policy of appropriate technical standards, and for proposing and assisting in policy developments which will result in new technological standards, advising on what is technically practicable and achievable and, where necessary, appearing as expert witnesses or making forensic judgments. The scientific function is particularly concerned with the promotion of relevant scientific knowledge both within and outside the Executive, with particular emphasis on the development of practical measures and techniques for the solution of actual problems. The medical function, relying in part on information from EMAS, seeks to identify, assess and counter harm, and to assist in the development of protective standards. Technological, scientific and medical staff are also concerned with the analysis of relevant data including incident and reliability data and with its communication. The TSM group have a special responsibility for promoting and structuring liaison within HSE on important or emerging technical issues, and for drawing these to the attention of all those who may be affected.

These three main functions are not set out in any particular order of importance, since all three are vital to the fulfilment of the Commission’s aims, and the balance of leadership shifts according to the nature of the subject in hand. So, frequently, does the activity of individuals. Not only can people move from one part of the organisation which may be principally concerned with one function to another mainly concerned with a different function, but within the same job individuals may find themselves contributing to say to, say, operational activity one day and to policy formation the next.

The functions which comprise the Triangle do not therefore correspond fully to the formal structure of our organisation. But they do explain how it achieves its purposes, and – since each function depends on the others – a statement of them demonstrates the everyday importance of cooperation between the different arms of HSE.

All the functions depend on a wide variety of services provided to all parts of the organisation through Resources and Planning Division and, within each division, by staff supporting those employed in the main functions; and the co-ordination of the different elements within the Triangle is maintained under the authority of the Executive and the Management Board and through the planning system.

The aims of the Health and Safety Commission and Executive, to which all these functions and mechanisms are subordinate, are set out overleaf

J D Rimington

Director General, HSE

Footnotes

[1] There are some other “recommendations” contained in the body of the report that do not feature in Chapter 18. This paper does not consider these.

[2] Para 495, Chapter 19 - Emphasis added by authors

[3] This is often used nowadays as a euphemism for “no regulation”. But that was not what Robens meant. The report is very clear in setting out the role of the regulator in developing and promoting self regulation by employers – but also to intervene where it was not working – through enforcement notices and prosecution where necessary. “Regulated self regulation” might be a more appropriate (and less controversial) term. Robens’ intent is explored in more detail in paras 71 to 75 of Why Robens?.

[4] That is not to say that no such document exists.

[5] Sixth Report from The Employment Committee. Session 1981–82 - The Working of The Health and Safety Commission and Executive: Achievements since The Robens Report.

[6] Algernon in “The Importance of being Earnest”

[7] Some of this is likely to form part of further work to be published in 2024/25

[9] International Standards Organisation

[10] See https://www.hse.gov.uk/simple-health-safety/policy/index.htm for the current version of this advice

[11] EU Directive 89/391/EEC

[12] See https://www.hse.gov.uk/pubns/indg417.pdf for the latest iteration

[13] E.g. Control of Major Accident Hazards Regulations 2015, The Offshore Installations (Offshore Safety Directive) (Safety Case etc) Regulations 2015.

[14] Safety Representatives and Safety Committees Regulations 1977 – SI 1977/500 (as amended)

[15] Health and Safety (Consultation with Employees) Regulations 1996 – SI 1996/1513

[16] Companies Consolidation (Consequential Provisions) Act 1985 (s29. Schedule 1).

[17] E.g. see https://www.hse.gov.uk/research/rrpdf/rr515.pdf

[18] s 11(3)(a) of the original Act, now s 11(5)(a) - following amendments made by The Legislative Reform (Health and Safety Executive) Order 2008 – SI 2008/960

[19] s 11(3)(c) of the original Act, now 12(2)- following amendments made by The Legislative Reform (Health and Safety Executive) Order 2008 – SI 2008/960

[20] s11(4)(b) of the original Act

[21] s11(4) of the original Act, now Schedule 2, para 9(3)(b) of the Act - following amendments made by The Legislative Reform (Health and Safety Executive) Order 2008 – SI 2008/960

[22] The change introduced by The Legislative Reform (Health and Safety Executive) Order 2008 – SI 2008/960

[23] The Legislative Reform (Health and Safety Executive) Order 2008 – SI 2008/960

[24] Op. cit. – see footnote 5

[25] Previously agreement on Directives required unanimity, henceforth agreement only required a qualified majority.

[26] These developments were not foreseen in the Robens report. There is the briefest of mentions of the European Economic Community and a one-page Annex providing commentary on the implications of the UK joining. That assessment hasn’t stood the test of time.

[27] The then extant legislation was subject to a very similar (in intent, but different by process) root and branch review under the 2010 Coalition Government.

[28] Lengths of time for some consultations were considered in some detail in the Sixth Report from The Employment Committee. Session 1981–82. However, this appeared to be more of an issue for the Select Committee members than the two sides of industry that were involved in the consultations.

[29] Consistent with broader public policy

[30] Hospitals initially had Crown Immunity until this was removed when NHS Trusts were established by the National Health Service and Community Care Act 1990

[31] See, for example Striking the balance between operational and health and safety duties in the Police Service PDF Document and HSE’s position on realistic training in the military

[32] Subsequently termed the Field Operations Directorate

[33] These regulations have been amended on numerous occasions over the years – the latest version being the Health and Safety (Enforcing Authority) Regulations 1998

[34] Now known as Employment Tribunals

[35] See https://www.sentencingcouncil.org.uk/wp-content/uploads/Health-and-Safety-Corporate-Manslaughter-Food-Safety-and-Hygiene-definitive-guideline-Web.pdf

[36] However, it did not “consider” the information provided by manufacturers and suppliers of substances. This fell to the regulator.

[37] Risk Assessment was implicit in HSWA but had yet to be fully expounded.

[38] From CE (Conformitè Europëenne) to UKCA (United Kingdom Conformity Assessed)

[39] This was driven by the Government’s “Next Steps Initiative”. HSL was established as an agency to give it space to develop a more commercial, customer-contractor, way of working - including within HSE itself. Ironically, given subsequent Government policy concerning quangos, this created a new quango (HSL) within HSE (a quango itself). In 2018 HSL morphed into HSE’s Science and Research Centre.

[40] NADOR was replaced in 1985 by RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences) in part because of changes to the industrial injuries benefit scheme. This improved HSE’s intelligence by introducing a new system for reporting occupational diseases. However, this had to be supplemented by other sources of intelligence and data in subsequent years.

[41] The costs to the British economy of work accidents and work-related ill-health, 1994.

[42] Although provision and powers to do so were included in HSWA.

[43] These are topics that may be explored further in subsequent work to consider the anniversaries of HSWA and HSC/E.

[44] See Common Sense, Common Safety PDF Document

[45] See Reclaiming health and safety for all: An independent review of health and safety legislation

[46] Reported in January 2014. See Triennial Review Report: Health and Safety Executive

[47] He became Chair of HSE in 2016

[48] The Management Board of the senior executive team

[49] This term refers to the three person Executive established under HSWA. This was removed when the HSC and HSE merged in 2008.

[50] See paras 25/26 of the main paper for a list of these.

[51] This note was prepared prior to HSE assuming responsibility for regulating offshore safety later that year. It subsequently formed part of Field Operations – and indeed had branches that would have been included in the other two parts of the Triangle.

[52] And Offshore Safety Division later that year

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