Reflections on Robens – fifty years after
Why Robens?
David Ashton
May 2022
Contents
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Paragraph numbers in this paper |
1-3 |
|
4-36 |
|
What was wrong with the system? |
4-13 |
Why was “a thoroughgoing overhaul” needed? |
14-21 |
Why Lord Robens? |
22-35 |
The objectives of the proposed changes |
36 |
37-38 |
|
39-54 |
|
The Committee’s approach |
39-44 |
Worker involvement |
45-49 |
Written health and safety policies |
50-51 |
Safety advisers and officers |
52-54 |
55-57 |
|
58-63 |
|
64-75 |
|
General principles |
64-70 |
Voluntary means and methods |
71-75 |
76-77 |
|
78-88 |
|
89 |
|
90-96 |
|
97-101 |
|
102-105 |
|
Fire precautions |
102 |
Flammable and explosive substances |
103 |
Toxic substances |
104 |
Design and manufacture |
105 |
106-108 |
|
109 |
|
110-111 |
|
112 |
|
113 |
|
114 |
|
|
(The summary given in Chapter 18 of each topic |
|
115-127 |
|
A programme of action, and the next steps |
115-127 |
128-137 |
Introduction
1. The question “Why Robens?”[1] has several elements. Why, fifty years ago, was it felt that a fundamental rethink of Great Britain’s long-established occupational health and safety arrangements had become urgently necessary? Why (and how) did the Robens Committee reach the conclusions that it did? And why was Lord Robens chosen to lead it?
2. The industrial landscape familiar to Robens has changed almost beyond recognition in the fifty years since. Many of the mainly large organisations from which the Inquiry took evidence about the current systems of health and safety regulation, and of the good practices that new arrangements should promote, have gone. Indeed whole industries, with their infrastructures of representative bodies, training provision and the like have gone too. New activities have arisen, sometimes creating new problems but also some showing evidence of benefits of the new OSH “system” and thinking being “designed in”.
3. These changes prompt two further questions. Why has the system Robens advocated survived largely intact for so long and indeed been adopted (and adapted) in many countries around the world? And what do the lessons of the past fifty years suggest for the future – how relevant does Robens remain? This paper seeks to inform debate on these questions on the fiftieth anniversary of the publication of the Robens Report.
Part 1: The nature of the Inquiry
What was wrong with the system?
4. The Robens Report began with a detailed account of the problems that had led to the Inquiry being set up. At that time around 1,000 people were being killed at their work each year, half a million suffered injuries, and 23 million working days were lost annually through industrial injury and disease. Despite some reservations over the accuracy of these figures, or the fact that they compared favourably with most other industrialised nations, the Report argued that “for both humanitarian and economic reasons, no society can accept with complacency that such levels are inevitable.” (11).[2] The 1970 Annual Report of HM Chief Inspector of Factories confirmed that the number of reported accidents had risen steadily during the first half of the 1960’s. (17).
5. The piecemeal way in which the legislation had developed over many decades, once a strength, had become a source of weakness. As far back as 1910, Sidney Webb had pointed out that
“We seem always to have been incapable even of taking a general view of the subject we were legislating upon. Each successive statute aimed at remedying a single ascertained evil. ... Neither logic nor consistency, neither the over-nice consideration of even-handed justice nor the quixotic appeal of a general humanitarianism, was permitted to stand in the way of a practical remedy for a proved wrong.” (Quoted in 22).
6. Robens cited the responses to the thalidomide tragedy, the Aberfan disaster and the death of eight people in a fire at Eastwood Mills, Keighley as examples of this pragmatic but narrow, backward-facing approach, adding that “the safety system must look to future possibilities as well as to past experience.” (19).
7. Unsurprisingly, the result after more than a century of this approach was a statutory system in which there was in his view “too much law of the wrong type” – nine main groups of statutes supported by nearly 500 subordinate statutory instruments, creating “an haphazard mass of ill-assorted and intricate detail”, much of which appeared “irrelevant to the real underlying problems.” Robens pointed out that “in recent years the average interval between the production of a first draft and eventual promulgation of the regulation (under the Factories and OSRP Acts) has been five years.” In one case it had been a “manifestly absurd” fifteen years. (141).
8. The Report criticised an excessive concentration on “physical circumstances – the safeguarding of machinery, the provision of adequate ventilation and lighting, and so on.” (30). Two harmful consequences flowed from this. Only one in six of the accidents reported under the Factories Act involved a breach of a specific regulation. And it led to “the neglect of equally important human and organisational factors, such as the roles of training and joint consultation, the arrangements for monitoring safety performance, or the influence of work-systems and organisation upon attitudes and behaviour.” (31).
9. The current arrangements could no longer be relied on to match the scale and pace of industrial development, as demonstrated for instance by the range and the amounts of toxic chemicals and dangerous materials being stored and used. In 1970 the Chief Inspector of Factories, Bryan Harvey, described the future in dramatic terms:
“We now face a new technology. The Inspectorate is now concerned with an industrial system where virtually anything is possible. Not only can natural materials be handled and worked in totally new ways, but we can manipulate molecular structures to make new materials with virtually any property or characteristic which we desire. Above all, we can now do this on a scale which only a few years ago would have been regarded as wholly unbelievable.”[3]
In the Report’s rather damning words, “the accelerating rate of technological change, coupled with the difficulties experienced in amending or revoking old regulations, creates a situation in which the maintenance and up-dating of a corpus of legislation of this type, size and complexity is an endless and increasingly hopeless task.” (29).
10. The problem created by this outdated, overweight and confusing body of law was compounded by a “tangle of jurisdictions.” (33). In England alone responsibilities for administration and enforcement were divided between five government departments, with seven separate inspectorates and extensive participation by local authorities. In an often-quoted passage, Robens argued that:
“people are heavily conditioned to think of safety and health at work as in the first and most important instance a matter of detailed rules imposed by external agencies.” The apathy to which this led “will not be cured so long as people are encouraged to think that safety and health at work can be ensured by an ever-expanding body of legal regulations enforced by an ever-increasing army of inspectors.” (28).
11. Using a term that was to prove controversial, Robens identified the “apathy” that the current system encouraged as “the most important single reason for accidents at work.” (13). This has been read by some as seeking to blame victims for their own misfortunes. In fact, Robens perceived a shared obligation, under which “The primary responsibility for doing something about the present levels of occupational accidents and disease lies with those who create the risks and those who work with them.” (28).
12. Moreover, success in terms of improving standards would depend on leadership from the top, not simply on everyone doing their bit as if they were equal players in the system:
“If directors and senior managers are unable to find time to take a positive interest in safety and health, it is unrealistic to suppose that this will not adversely affect the attitudes and performance of junior managers, supervisors and employees on the shop floor. If, as we believe, the greatest obstacles to better standards of safety and health at work are indifference and apathy, employers must first look to their own attitudes. Moreover boardroom interest must be made effective.” (46).
13. In short, Robens suggested, probably with deliberate understatement, that “the traditional approach may be running out of steam.” (31). Clearly, in the view of the Committee, it already had – a view that was widely shared. In Bryan Harvey’s experience, “Some of the traditional hazards of the physical environment have been brought under control over the past years. What we must now increasingly tackle is the social or management environment which may underlie poor safety performance.” He would have been well aware of (and no doubt share) the conclusion of his predecessor R. K. Christy that “The errors arising from human behaviour do not, except to a very limited extent, lend themselves to control by legislation.”[4]
Why was “a thoroughgoing overhaul” needed?
14. In 1967, the Labour Government had made a commitment to introduce statutory provisions if industry itself did not voluntarily improve and extend its arrangements for consultation between management and workers on health and safety matters. Work began on a comprehensive revision of the Factories Act 1961 and the Offices, Shops and Railway Premises Act 1963.
15. The scope of the existing legislation was to be extended to give protection to as many as possible of those workpeople who were not covered by existing safety and health legislation. The new legislation was to be more enabling in character than the existing Acts, Regulations and Orders, which had over their many years of application become more prescriptive in character. It would provide a more flexible instrument for dealing with the problems of rapid technological change. Much wider provisions about safety training and instruction were to be included, as well as greater powers to provide for the safety of machinery, plant and equipment as supplied to the eventual user.
16. One might describe this as an early prototype of Robens’ model, and of the Health and Safety at Work Act to which it led. However it was abandoned when it became clear that the end product would be fundamentally the same kind of legislation as already existed, with many of the shortcomings described above remaining unresolved. As a result, it would not address the increasing rate of accidents in workplaces subject to the Factories Act – a key driver for the proposed reform.
17. Instead, a Committee of Inquiry was appointed on 29th May 1970 by Barbara Castle, Secretary of State for Employment and Productivity, with the following terms of reference:
“To review the provision made for the safety and health of persons in the course of their employment (other than transport workers while directly engaged on transport operations and who are covered by other provisions) and to consider whether any changes are needed in:
(1) the scope or nature of the major relevant enactments, or
(2) the nature and extent of voluntary action concerned with these matters, and
to consider whether any further steps are required to safeguard members of the public from hazards, other than general environmental pollution, arising in connection with activities in industrial and commercial premises and construction sites, and to make recommendations.”
18. Taken at face value, these seem fairly neutral words. It would have been open to the Committee to propose incremental change, or indeed none at all, rather than “some radical rethinking.” (18). In fact, opinion had already shifted in that direction, as the abandoned 1967 attempt reveals. Three years later, patience had run out, and there was by that time a clear and fairly well-developed idea of the changes that were desired. On 2 March 1970, Barbara Castle said in Parliament that “I have become convinced that the old approach to these problems is inadequate, that we ought to be asking some far-reaching questions about our safety legislation ... the mere consolidation and revision of existing arrangements is not enough.”[5]
19. In setting up the Inquiry, she wrote to Vic Feather, General Secretary of the TUC, of the need for “a high-level outside enquiry ... (which) would without going into the detail of the existing legislation, take a general look at the way the present system works right across the board.”[6] Vic Feather suggested Lord Robens to chair the Inquiry. The Committee had six other members: George Beeby, an industrialist; Mervyn Pike, a Conservative MP; Sydney Robinson, a trade unionist; Anne Shaw, a management consultant; Brian Windeyer, a radiologist and John Wood, a law professor (and Vice Chairman of the Committee).
20. Their Inquiry was detailed, extensive and thorough. Over 200 written submissions were received from 183 organisations and individuals, in response to a questionnaire which, while not actually asking leading questions, did give indications of the direction of travel. It forms Appendix 13 of the Report. It said, for instance, that:
“within the Inquiry’s terms of reference it is possible to identify a number of fundamental and wide-ranging issues which call for examination. For example, what are the underlying causes of failure to prevent accidents and ill-health at work? How far are existing statutory controls and other non-statutory arrangements directed towards the real problems, and how successful are they in terms of accident and ill-health prevention? Do present arrangements put the right responsibilities in the right places? Is the present balance of resources between legislative action and other forms of action the right one? Where should the emphasis be placed in the future? What major legislative, organisational or institutional changes may be needed?”
21. Volume 2 of the Report, containing only about a quarter of the written material formally submitted to the Committee, is 718 pages long. Overseas visits were made to Canada, the Federal Republic of Germany, Sweden and the United States of America. By working in this way, the Committee was able both to build and to demonstrate wide support for the model it put forward; and to show that it reflected leading practice in other countries.
Why Lord Robens?
22. In some respects, Lord Robens was an obvious candidate to chair such a major inquiry. He was, in the worlds both of politics and of business, a ‘big beast.’ He became an MP in 1945, leaving in 1960 to become Chairman of the National Coal Board. During his time in Parliament he was a passionate advocate for occupational health and safety. In the mid-1950’s, he had for example lobbied the then Conservative Government to expand industrial health and safety legislation to non-industrial premises.[7] George Brown (the runner-up to Harold Wilson in the election to succeed Hugh Gaitskell in 1963) admitted in his autobiography that had Robens been in Parliament he himself would not have opposed him, and even if he had, Robens would have defeated him. In Parliament and afterwards, Lord Robens held many posts and appointments (including a brief spell as Minister of Labour) that equipped him to lead the Inquiry on Safety and Health at Work.
23. However, his appointment was and remains controversial because of his conduct following the Aberfan disaster in 1966. He was slow to visit the site, and in one interview wrongly claimed that the disaster had been caused by “natural unknown springs” beneath the tip; evidence emerged that the existence of these springs was common knowledge. The report of the Davies Tribunal which inquired into the disaster was highly critical of the NCB and Lord Robens, for instance over the long delay before the NCB admitted its liability.
24. Professor Iain McLean, having studied the Aberfan papers at the National Archives that were released in 1997, described his appointment to chair the Committee of Inquiry on Safety and Health at Work as “beyond satire.”[8] On the other hand Chris Sirrs pointed out that Vic Feather’s suggestion that Lord Robens should chair the Inquiry indicated that he “retained credibility among the trade union movement despite the reputational damage inflicted by Aberfan.”
25. In June 1970, just as the Committee was beginning its task, Lord Robens published a short book, Human Engineering, in which he asserted the urgent importance of creating “a business-like Britain.”[9] In it he was scathing about the quality of government that he had seen and indeed had taken part in (for instance as Minister of Labour and National Service in 1951): “Many businessmen are riled by Government intervention not because it is done, but because it is done badly ... Since the war, there has been no firm grip upon the economy. The result has been economic disaster ... Too much departmentalization, a failure to devise sound business methods of administration and a lack of the ‘total sum’ approach have, among other failures, led us to this sorry pass.”
26. His remedies were built on the belief that “the people themselves are the most valuable asset of the nation. A business-like approach would clearly want to look at the human assets at its disposal, how they should be trained, given experience and deployed ... it would want to make sure that they were at all times fully acquainted with the latest techniques of business management ... The actions of the Civil Service should be judged on cost-effectiveness ... We should also ensure that as much enterprise is shown as possible – a little of the buccaneer spirit is needed amongst our civil servants ... In order to do this it may be necessary to hive-off some of the responsibilities of Government to independent Commissions. Here they would be free of the day-to-day financial control of the Government and they would be at greater liberty to show the enterprise and genius that we have.”
27. He set out his views on occupational health and safety in Chapter 7 of the book. He argued for instance that “acceptance of the status quo so far as industrial safety is concerned represents more than just inefficiency, it is industrial sabotage of the first magnitude.” He even advanced the idea of there being “no such thing as an unavoidable accident” although tempering this with the assertion that “very often the incapacitated man is responsible for his own personal tragedy.” He saw “Safety Committees composed of management and work-people at all levels as certainly the best way to reduce accidents.”
28. He described the current legislation as having “the built-in disadvantage of provoking resentment and resistance from the employers and management, who have their attention constantly directed to the minimum requirements of the law. Thus it is true to say that a real appreciation of the importance of safety on humanitarian and efficiency grounds has never gained universal acceptance.”
29. In summary, it seems clear that in setting up the Inquiry, the Government had already concluded that radical change was needed; that they knew both in general terms and at a considerable level of detail, the approach that they wished to introduce; and that Lord Robens was the right man to lead the task; a wise man in the eyes of Ministers with the right qualifications to do the job quickly and well, in Jenny Bacon’s view.[10] Chairing the Inquiry gave him the opportunity to develop and to promote his own thinking on the subject.
30. The views that Lord Robens set out in Human Engineering are evident in the Report, but it is important also to remember that what we now call the Robens Report, or the Robens philosophy, reflected the thinking of the time and were the products of a huge collective effort involving the Committee itself, the many organisations and individuals who submitted their views, Civil Service Departments (notably the Department of Employment), public servants and politicians across the parties.
31. That is not to say that contrasting views necessarily received equal weight. A detailed analysis of background documents prepared for the Committee by the Department of Employment led Chris Sirrs to emphasise “just how influenced the Committee was by the views and beliefs of its sponsoring department. An early paper, for instance, advanced a view of the regulatory system that was automatically accepted by the Committee, highlighting the ‘multiplicity of enforcing agencies, the multiplicity and overlap of statutes, the distinction between safety and health of employed persons and safety and health of members of the public, (and) gaps in the coverage of the legislation.’ ... An early review of evidence just six months into the Committee’s proceedings, moreover, highlighted the factory inspectorate’s belief that ‘the existence of a mass of detailed restrictive legislation may inhibit the natural development of self-help and continuous self-regulation by industry itself.’”
32. Chris Sirrs added that “On the other hand, the Committee appears to have quickly dismissed the TUC’s view that the government needed to devote more resources to accident prevention, increasing both the number of factory inspectors and the level of fines imposed in court.” “On enforcement, Robens’ recommendations strongly reflected the Factory Inspectorate’s belief that legislation ‘should seek to promote, as much as to control.”
33. In Chris Sirrs’ view, “Except for joint consultation, the Robens Committee was more sympathetic to CBI proposals, which were more in line with DE and Factory Inspectorate proposals as they had developed from 1967.” That said, a consensus of sorts, sufficient to carry the Report forward, was achieved: “While the TUC and CBI disagreed with the report’s stance on specific issues, such as the form and content of new regulation, they felt that the report represented an advance over the existing system. Writing for the Amalgamated Union of Engineering Workers, for example, Victor Feather argued that the Robens Report was an important step forward, and history needed to remember its publication. The TUC and CBI were also willing to overlook their differences to lobby for Robens’ proposals to be speedily enacted: following the report’s publication, the TUC and CBI wrote a joint letter to Employment Secretary, Maurice Macmillan, urging him to bring forward legislation as soon as possible.”
34. It is interesting to note how far Robens had been able to influence views put to them in written evidence on the essence of the changes that they already had in mind to propose. For instance the TUC’s opening position was expressed in these uncompromising terms: “We do not accept the arguments of those who advocate replacing the specific requirements imposed by existing legislation, by a general duty of care. “The Act itself should lay down in broad clear terms the safety code to be observed, and regulations should not be used to defeat this objective.” “We are in no doubt whatever that if Inspectors were to be restricted to prosecuting for breach of general duties, enforceable through a Magistrate’s Court, safety standards would suffer.” (Volume 2, pp 681-2).
35. A 2015 Research Report for the Institute of Occupational Safety and Health observed that in framing its recommendations “The approach taken by the Robens Committee and the subsequent Health and Safety at Work Act ... is generally seen as the zenith of this consensual approach and the corporatist, tripartite decision-making systems that implemented it.”[11] Jenny Bacon referred to a background of major institutional changes in machinery of Government at the time – in particular, support for tripartism and the introduction of Non-Departmental Public Bodies such as the National Economic Development Office, the Advisory, Conciliation and Arbitration Service and the Manpower Services Commission – with which Robens was in tune.
The objectives of the proposed changes
36. At the end of Chapter 1 of the Report there is a general statement of the new approach that the Report would then go on to propose. This is often referred to as the Robens philosophy:
“One main objective of reform of the statutory arrangements should be the creation of a more unified and integrated system to increase the effectiveness of the state’s contribution to safety and health at work. But reform is also needed to meet the criticisms we have made in this chapter concerning the effect of too much law of the wrong type upon the attitudes and actions of employers and workpeople. This points to a second and related objective of the greatest importance. The most fundamental conclusion to which our investigations have led us is this. There are severe practical limits on the extent to which progressively better standards of safety and health at work can be brought about through negative regulation by external agencies. We need a more effectively self-regulating system. This calls for the acceptance and exercise of appropriate responsibilities at all levels within industry and commerce. It calls for better systems of safety organisation, for more management initiatives, and for more involvement of workpeople themselves. The objectives of future policy must therefore include not only increasing the effectiveness of the state’s contribution to safety and health at work but also, and more importantly, creating the conditions for more effective self-regulation.” (41).
Part 2: The Report’s recommendations
37. The Report contains a summary of the Committee’s recommendations (Chapter 18). As noted earlier in this paper, a major reason for its acceptance and implementation was that it was in tune with the times; it delivered an answer that many people wanted to hear. Another, more basic reason, was that it was well and persuasively written. (The Committee paid a generous compliment to “the fine drafting skill” of their secretary, Matthew Wake, and the “unsurpassed enthusiasm” of his assistant, Charles Neale).
38. Each section of Chapter 18 is reproduced below, followed by brief commentary reflecting the further detail given in the main body of the Report, and touching on the subsequent processes which led to the passing of the Health and Safety at Work Act and the creation of the Health and Safety Commission and Executive two years later.
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.
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.
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.
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.”
The Committee’s approach
39. The Committee saw one of the functions of legislation in this area as being “To spread good practice” (69), to underpin and promote the voluntary activity from which genuine improvements would flow. However its role could only be a secondary one:
“We are encouraged by the increasing interest shown by employers in the development of more systematic approaches to prevention. Instances were brought to our attention where the introduction of a carefully planned and monitored safety programme had been followed by a dramatic reduction in the incidence of accidents. More needs to be done to increase industry’s capacity for this kind of systematic self-regulation. This is primarily a task for industry itself, but we hope that the statutory arrangements we recommend later in this report will make a contribution. In particular, we see here some scope for sophisticated advisory work by the inspectorates.” (50).
40. They knew that the term “self-regulation” would be controversial. It provoked criticism of the Robens philosophy then and has continued to do so ever since, being seen as a coded term and agent for deregulation. Christopher Sirrs has pointed out that when the Report was published “The Guardian reported that by emphasising self-regulation, Robens placed ‘too much faith in human nature.’[12] The Labour backbencher Neil Kinnock scoffed that the Robens philosophy effectively meant ‘If we have less law, we shall have more safety.’” Despite this rather biting joke, he proved in Jenny Bacon’s view to be a staunch supporter of the eventual HSW Bill, both in its committee stage and in his role of Parliamentary Private Secretary to Michael Foot. Neil Kinnock “squared a lot of opposition” in her words.
41. Lady Summerskill, a Labour peer, was reported in The Times as having argued that the Report “would bring rejoicing to the hearts of every irresponsible employer of labour who used the voluntary approach as an escape from his obligations.” However, as the passage quoted above from paragraph 41 reveals, Robens had in mind a fairly formal, structured approach: “systematic self-regulation,” not an ill-defined ‘laissez-faire’ option.
42. The term was not coined by Robens. “As long ago as 1911 an official Report stressed that the main scope for progress in safety and health at work lay in developing and strengthening positive co-operation between factory inspectors and employers. Further back, the first alkali inspector was writing in the 1870’s about the importance of providing constructive advice and encouraging the concept of industrial self-regulation.” (208).
43. It was fundamental to the Robens philosophy, and care was therefore taken to explain and illustrate what it meant. Indeed it was a characteristic of the Report to spell out in some detail the sort of arrangements they had in mind, rather than simply to sketch out a general objective:
“At one firm we visited, boardroom interest was exemplified in a policy statement setting out safety objectives and rules together with supporting arrangements for maintaining active interest at all levels. These included payment of a bonus to new entrants after passing a safety qualification test, monthly safety meetings in all departments, safety audits, and strict use of procedures such as clearance certificates for new equipment, safe – access working permits etc. The firm’s accident frequency rate is about one-fifth of the rate for the particular industry.” (46, footnote).
44. They generally found the “good practice” that they wished to promote among large organisations, managing significant hazards; for example, Esso Petroleum Co. Ltd. at Fawley and British Leyland Motor Corporation at Longbridge were praised for their safety programmes, and the British Steel Corporation and Procter & Gamble for “excellent safety and health policies setting out their basic objectives”. (50 and 52, footnotes).
Worker involvement
45. Their recommendation on worker involvement, which they regarded as “quite central to this Inquiry and to the main themes of our Report” (64) was inevitably a compromise, given the range of opinions and of circumstances that it had to accommodate. It was based on two conclusions in particular, one factual, the other philosophical. The first was that “many voluntary arrangements already exist at plant level for joint co-operation on safety and health between employers and employees and their representatives.” (69). By 1969, “joint safety committees covered nearly 70% of the workforce in factories employing more than 50 people.” (61).
46. Chris Sirrs pointed out that this voluntary increase had in fact been in response to a threat in 1966 by the Minister of Labour to legislate, given the “extremely disappointing” progress up to that date, and that industry’s commitment at that time was “open to serious doubt.” Chris Sirrs concluded that the reason “Robens avoided prescribing any particular arrangement for employers to consult their workers” was not only that he “bought the CBI’s argument that legislating for joint consultation would undermine voluntary efforts, but also that his thinking was captured by the conciliatory approach of the Factory Inspectorate and its talk of diminishing regulatory returns.”
47. Jenny Bacon recalled that two concerns, deeply felt by the Trade Unions, created difficulties here. They argued that the provisions should relate only to recognised trade unions, and that the employers’ duties should be specified in the Bill itself rather than regulations. Eventually, as time ran short they were persuaded that a general duty would be better than nothing.
48. The Committee’s second conclusion, a principle upon which all of their proposals were founded, has remained contested to this day:
“there is a greater natural identity of interest between ‘the two sides’ in relation to safety and health problems than in most other matters. There is no legitimate scope for ‘bargaining’ on safety and health issues but much scope for constructive discussion, joint inspection, and participation in working out solutions. ... More generally, we have stressed the concept of self-regulation and self-inspection as a basic theme of this Report. In this we do not distinguish between the two sides of industry; if progress is to be made there must be adequate arrangements for both management and workpeople to play their full part.” (66).
49. Given that “most of the discussion on this topic has tended to centre on arguments for or against compulsory joint safety committees” (65), rather than the principles of involvement and recognition, they proposed:
“a flexible approach rather than the imposition of some uniform pattern of arrangements. We are inclined to think that a statutory provision requiring the appointment of safety representatives and safety committees might be rather too rigid and, more importantly, rather too narrow in concept. Our conclusion is that the best way to meet the real need would be to impose on employers a general duty to consult, on somewhat similar lines to the consultative provisions in existing legislation prescribing the functions and duties of the nationalised corporations.” (69). This would be backed by “a code of practice outlining model arrangements” (70).
In the event, as Chris Sirrs pointed out, “It was not until 1977, following the HSW Act, that recognised trade unions gained the right to appoint safety representatives, in one of the few significant departures from the Robens Committee’s recommendations.”
Written health and safety policies
50. This was an easier subject for the Committee to handle than worker involvement. In February 1972 the CBI and TUC issued a joint statement on safety consultation, deferring the question of voluntary versus statutory joint consultation until the Committee had reported, but stating firmly that “A clear written statement of a company’s safety policy is the essential foundation stone for any effective safety organisation.” (73, footnote. The joint statement is reproduced in Vol. 2 at pp 154-5).
51. Robens’ philosophy was embodied in their analysis and in the resulting recommendation:
“The best managements are in no need of persuasion or pressure. The problem is how to raise the general level of interest to the standards of the best firms. We see a need not for dramatic legal intervention but for small pressures in the right direction, to reinforce the natural development of good practice.” (72).
They suggested “a legal obligation on all employers employing more than a specified number of workpeople (say, those employing ten or more) to set out their safety and health policy and rules in writing” (74), although their recommendation contains no figure. In the event, the number was set at five in HSW Act, and the practical value of written policies among such small businesses has been a matter for debate ever since.
Safety advisers and officers
52. The question of whether to mandate the appointment of specialist safety advisers or officers, on which Robens received many submissions, further illustrates their approach to many of the issues put before them. They recognised that there was a wide variation, from “highly-qualified professionals in very senior posts, responsible for the development of safety policy and co-ordination at high level” to “safety officers who do little more than maintain basic records, issue protective clothing and conduct routine investigations into accidents.” (54). But they were adamant that “raising the status of safety officers cannot be achieved by artificial means, least of all by any measure imposed on industry from the outside.” (58).
53. In view of this, they rejected calls for a prescriptive approach, such as one in which “all firms over a certain size should be required to appoint a safety officer, whose duties and qualifications should be prescribed in statutory regulations. There are already some very limited requirements of this kind in shipbuilding and construction, and experience here does not seem to have been particularly encouraging.” (57). However they did accept that “new legislation should provide powers which would enable such requirements to be imposed in particular industries where this might be helpful, but before such powers can be exercised effectively much more thought and study will need to be given to the complex question of prescribing and enforcing standards of training and qualification.” (57).
54. Their approach to their main recommendations can be summarised as being a pragmatic one, within the guiding philosophy set out in paragraph 41 of the Report: Will it work? Will it be suitable? Will it be taken up? Will it promote collaborative and voluntary effort? And, finally, what part should legislation play in bringing it about?
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.
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.”
55. The terms in which these two recommendations were couched did not fully capture the high expectations revealed by the supporting text. The Committee were impressed by the range and quality of the collaborative activity that they had found, concluding that
“There is virtually unlimited scope for practical work by industry-based safety bodies, which can collate and interpret statistics, publish information, undertake technical surveys and research, provide advisory services to individual firms, and liaise with government departments and inspectorates. Through these means each industry can work towards the solution of its own special problems.” (77).
56. They were particularly impressed by the Swedish Foundation for Industrial Safety and Health in the Construction Industry, whose approach went far beyond the provision of the (generally excellent) written guidance that was a priority for industry bodies in the UK, such as the eight statutory Joint Standing Committees. They noted that
“It was formed in 1968 to promote safer working practices and conditions in the industry and to provide information, training, preventive health care, treatment and rehabilitation. It is financed by a levy on employers and has 17 regional offices, each with a technical and a medical section, as well as mobile units. Through the provision of a wide range of technical services it is undoubtedly making a positive impact on attitudes towards safety and health in the Swedish construction industry.” (78).
57. In summary, and in line with their general philosophy, collaborative activity by the players themselves, helped rather than hindered by the state, was their model:
“we regard practical safety work undertaken on a voluntary basis at industry level as one of the most fruitful avenues for development in the future. The indications are that such activity will continue to increase spontaneously. We feel very strongly that this should include more emphasis in future on joint action at industry level, as distinct from separate action by employer organisations or by trade unions, although both are valuable. We have expressed the view that progress in this could be assisted by continued active steps by the TUC and CBI, and we urge these bodies to devote more resources to this purpose. ... It is important that these self-generated and self-generating activities should not be inhibited by unnecessary state intervention. ... More generally, members of the inspectorates maintain many formal and informal contacts with the various safety organisations within industry. The fact remains, however, that neither the nature of the present legislation nor the present fragmentation of administrative jurisdictions is especially conducive to the active development of this collaboration.” (94-5).
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.
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.
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.”
58. Echoing the criticisms in Human Engineering, the Report condemned “the excessive fragmentation of the statutory arrangements and ... how this causes problems at the level of the workplace, at the level of the operational activities of the inspectorates, and at the national level of administration, policy-making and law-making.” (97). Given this, it is unsurprising that they determined that “A major exercise in unification is needed to rationalise the state’s contribution to safety and health at work and to maximise its efficiency.” (98).
59. They were sceptical towards, and on occasions sharply critical of arguments in favour of the compartmentalised existing arrangements. For instance in Chapter 12 on the organisation of occupational medicine, they did not mince their words:
“We repeat that we would not regard the question of the organisational relationship between general medicine and occupational medicine as being finally determined by the establishment of an Employment Medical Advisory Service within the ambit of our proposed Authority for Safety and Health at Work. We see nothing in such a development to impede further consideration at the appropriate time; but we would hope that any such reconsideration would be based less on a priori arguments of the kind frequently put to us than on careful analysis of what actually happens in practice in the field.” (380).
60. Their proposed model was therefore as comprehensive as possible; the default was to be in, not out, including under a “comprehensive Act” (101) mining, agriculture, explosives, nuclear installations and alkali works. This approach would cause difficulties in the implementation phase and for many years afterwards for HSE.
61. Another characteristic of the Committee was that they were indefatigable in pursuing their arguments, leaving no stone unturned. They identified a further eight statutes “of narrower scope” that should in due course be brought within the scope of the unified system that they proposed. These included the Mineral Workings (Offshore Installations) Act 1971 and (perhaps tellingly, in view of Lord Robens’ role at the NCB) the Mines and Quarries (Tips) Act 1969 which were of course made in response to Aberfan.
62. The “administering authority” needed in their view to have four main characteristics:
“it should be a separate and self-contained organisation, clearly recognisable as the authoritative body responsible for safety and health at work ... it should have autonomy in its day-to-day operations ... it should be organised in such a way as to provide full scope for the effective application of the principles of responsible and accountable management ... (and) the user interests in this field – that is to say the organisations of employers and workpeople, the professional bodies, the local authorities and so on – must be fully involved and able to play an effective part in the management of the new institution.” (114).
63. The Report then went into detail about the new Authority’s functions, the constitution and membership of its executive Managing Board (to “include people with experience in the field of industrial management, in the trade union field, and in the medical, educational and local authority spheres”) and even that it should meet “at least once a month.” (118). It should function as “an independent body, with full operational autonomy” under “the very broad policy directives of a departmental Minister” (121). In a disarming nod to the inevitable turf wars ahead, the Report merely conceded that “We recognise that what we recommend may have some novel aspects, but innovation is needed to meet changing circumstances.” (123).
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.”
General principles
64. The Committee proposed three “general principles” that the new provisions should embody:
“First, the detailed safety and health code should be underpinned by a clear, central statement of principles of general application. Secondly, in structure and presentation the new legislation and its supporting instruments should be readily intelligible to employers and workpeople. Finally, the new provisions should provide a framework that is constructive rather than prohibitory. They should give practical guidance designed to promote a positive, progressive and responsible approach to safety and health at work.” (125).
65. In the Report’s terms the current arrangements were negative in character, whereas the desired future system should act in a positive manner. The role of the central authority should be designed accordingly, and it should be reflected in the balance between support and enforcement. This would require a major change in outlook and approach. (One can imagine the Committee not warming to typical letters of the time which were required to be along these lines: “Dear Sir, at a visit to ... on ... by ... HM Inspector of Factories, (1) The following dangerous parts of machinery were not securely fenced, contrary to The Factories Act 1961, Section 14(1) ...” (and so-on).
66. Polite yet persistent criticism can be found of the way inspectors were obliged to operate at that time. For instance:
“The limited nature of some of the present work of the safety inspectors derives from their preoccupation with—and indeed to some extent their dependence upon a large number of detailed statutory regulations unrelated to any over-riding general requirement. The statutory framework within which they work is a constrictive one, and they have no authority to go beyond it.” (131).
This is explored in Chapter 7 on the inspectorates.
67. The “governing statement of general principles” (131) was carried over into HSW Act essentially unchanged from the outline given by Robens. It was derived from “the existing common law on this subject” (132) which had of course grown up over many years, largely in response to events, just as the now-confusing body of legislation enforced by the inspectorates had; but written in broad and positive terms, meaning that it has required only minimal amendment in the fifty years since.
68. Jenny Bacon emphasised how radical it was to propose paralleling the common law in the general duties of the new Act in such a way; normally “a legislative no-no” as she put it. This was achieved with the aid of “a very able and pragmatic Parliamentary Counsel (legal draftsman) – George Engel, who became Chief Parliamentary Counsel. He took the wording that we gave him more or less verbatim, rather than wrapping it up in legal qualification.”
69. The price for securing these all-important general duties was the qualification to them of the term “so far as is reasonably practicable.” However another small but important win was that there would be no similar condition on regulations made under the Act. It was also agreed that such regulations could also be used to amend the pre-existing relevant statutory provisions – the “haphazard mass of ill-assorted and intricate detail” by which Robens had been appalled.
70. The supporting instruments giving the necessary practical detail should consist of “(a) statutory regulations and (b) voluntary standards and codes.” (134). The Committee were:
“in no doubt that as a general rule a non-statutory code or standard is to be preferred to a statutory regulation in the interests of intelligibility and flexibility, and as a means of providing practical guidance towards progressively higher standards. (147). ... This implies some degree of recession from direct Parliamentary control. We believe that this is inevitable and must be accepted.” (135).
Voluntary means and methods
71. The Robens philosophy was criticised at the time as naively deregulatory, and since then as a facilitator for wider deregulation. Whatever view one adopts, it is important to be aware of the expressed attitude of the Committee, as set down in the following statement:
“Our recommendation that more use should be made of voluntary codes and standards and less of statutory regulations is quite central to the philosophy of this report. Some of those with whom we discussed the general proposition expressed uneasiness that it might be interpreted as a move towards a watering-down or relaxation of control; that non-statutory standards and codes might be difficult to enforce in precisely those cases where strict enforcement measures might be needed; and that in the result there could be some falling-off in the degree to which adequate standards are actually achieved at workplaces. We must therefore make our position clear. We are not advocating a slacker approach. On the contrary, elsewhere in this report we indicate areas where statutory provision is inadequate and should be tightened. What we are suggesting is that the whole system should be more flexibly based and more discriminating. The means used should encourage industry to deal with more of its own problems, thereby enabling official regulation to be more effectively concentrated on serious problems where strict official regulation is appropriate and necessary.” (148).
Fifty years on, the validity of this statement is still disputed, in particular its emphasis on the role of voluntary means; but the sincerity and strength with which it was held is surely evident.
72. That dispute centres on the presumption that the main actors would not of their own accord take initiatives they did not have to; that, in effect, only “serious problems” would be enforced against, with everything else left as optional. And that in turn this would diminish the role and capacity of the Inspectorates, leading to harmful forms of deregulation counter to Robens’ intention. Be that as it may, this is not what Robens intended or believed would happen, provided that the recommendations in the Report were implemented as a self-reinforcing system:
“By ‘system’ we mean here the whole complex of arrangements and activities, whether of a statutory or voluntary nature, which seek to protect and promote the safety and health of people at work, and to protect the public from hazards of industrial origin. The system can be seen as comprising two very broad elements: regulation and supervision by the state, and industrial self-regulation and self-help. The most fundamental issues before us are concerned with the relationship, balance and interaction between these two broad elements.” (15).
73. Arguing that “To spread good practice is one of the functions of social legislation” (69), Robens saw the roles for “regulatory law” and “government action” as being “predominantly concerned not with detailed prescriptions for innumerable day-to-day circumstances but with influencing attitudes and with creating a framework for better safety and health organisation and action by industry itself.” (28). The new national Authority would “provide a better mechanism for linking up voluntary and statutory activities in a more comprehensive way.” (96).
74. Such an approach is demonstrated in the recommendations for improving employee participation (discussed in paragraphs 44-49 above) – a deeply vexed question at the time. Robens’ response was simply to “impose a general duty to consult” backed up by “a code of practice outlining model arrangements.” (69, 70). Characteristically, the Report did then go on to outline in some detail the expected contents of the code, including “such matters as the qualifications, training, duties and rights of employees’ safety representatives, arrangements for joint inspections, the objectives, composition and procedures of joint safety committees, and so on.” (70).
75. In short, “voluntary” did not, to Robens, merely mean optional actions that one would be free to take or ignore. It was intended to encourage flexibility, the matching of solutions to circumstances, rather than trying to impose rigid and constraining requirements that might not suit every situation. It would act as part of a wider system, creating expectations, opportunities and applying constructive pressure on all concerned to raise standards beyond legal minima; a culture of engagement rather than the then-current apathy, leading to higher standards than could ever be achieved by “an ever-expanding body of legal regulations enforced by an ever-increasing army of inspectors.” (28). Only in this way, Robens argued, would the mounting problems caused by the previous approach be corrected, and the principle of “effective self-regulation” at the heart of the Robens philosophy (quoted in paragraph 36 above) be realised.
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.
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.
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.”
76. The Report briefly considered the pros and cons of framing the scope of legal obligations “in terms of premises, activities or persons.” (165). It determined, characteristically, that the most ambitious option would be the best, extending obligations “to all employers and employees except in circumstances that are specifically excluded.” (171). In the same vein, whilst recognising that “there are practical difficulties in enforcing the application of this type of legislation to the self-employed. Nevertheless we are in no doubt that the attempt has to be made.” (175).
77. Aware of the complex forms of self-employment for example in construction, they questioned the argument that such people should not be put under obligations where only their own protection was at issue. Their grounds were simple; “we doubt whether in reality there are many serious risk-situations that are exclusively confined to one individual.” However the recommendation in paragraph 474 (above) was silent on this point. Pressure for deregulation to reduce perceived burdens on self-employed businesses led to political pressure to revisit this issue in 2014.
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.
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.
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.”
78. The Inquiry was mainly concerned with seven inspectorates:
“Factory Inspectorate (Department of Employment)
Mines and Quarries Inspectorate (Department of Trade and Industry)
Agriculture Safety Inspectors (Agriculture Departments)
Explosives Inspectorate (Home Office)
Nuclear Installations Inspectorate (Department of Trade and Industry)
Radiochemical Inspectors (Department of the Environment)
Alkali and Clean Air Inspectorate (Department of the Environment).” (193)
The Report described their history and current organisation in some detail.
79. Based on their joint visits, which were mainly with Factory Inspectors, the Committee acknowledged that “in this field ‘tradition and the sturdy independence expected of an inspector do not make changes easy’.[13] Nevertheless we believe that many inspectors will welcome the challenges and opportunities presented by our proposals.” (191). In more recent times, HSE staff have sometimes made this point in more colourful terms; “like herding cats” being an example.
80. Clearly, Robens found these joint visits a mixed bag:
“Our strong impression is that routine visits tend to be brief, superficial and usually unproductive. In particular, we think that periodical routine visits by highly qualified inspectors to very small firms employing no more than a handful of people, often engaged in processes where hazards are minimal, is a misuse of skilled manpower. This is not to say that there may not be serious safety and health problems in some small establishments. Indeed, it is just as much a misuse of manpower to spend a lot of time at a large establishment that is very well organised and maintains high safety and health standards. Our point is that the resources of the inspectorate must be used selectively. They should be concentrated on priorities and problems that have been identified through the systematic assessment of all the available data general technical information, local knowledge, statistics of accidents and so on. Obvious though the point may appear, we found in the major inspectorates less evidence than we had expected of serious and sustained priority planning based on the systematic appraisal of data. The preference for set patterns of regular inspection has tended to dominate thinking and to pre-empt resources that could be put to more efficient use. In recent years there has been some movement in the direction of a more selective approach. This movement needs to be developed and speeded up.” (218).
81. The problem lay deeper than the mere use of a simplistic selection system largely ignoring risk. Robens was critical of “the lack of clarity about the precise role of the inspectorates.” (210). He traced this back to the fact that “the administering departments have been more preoccupied with day-to-day questions of organisation and procedure than conscious of any need to make explicit decisions about fundamental objectives.” (210). Deeper still, the many responses to the Committee had fallen into two fundamentally opposed broad categories. “On the one hand the responsible government departments and inspectorates tended in their evidence to describe their primary function in terms of improving standards of health and safety at work, rather than in terms of law enforcement as such. ... On the other hand, some submissions urged us to recommend that inspectors should pursue a policy of rigorous enforcement, utilising the sanctions of the law widely and to the full.” (207, 208).
82. Clearly, the new organisation would need to be able to think much more deeply about how best to achieve its objectives, the tools at its disposal, and even (belatedly?) about what those objectives really were.
83. To achieve the required “problem-oriented approach” (219) they opted for the most radical option available to them, “of a unified inspectorate. This means much more than bringing the existing inspectorates together in more or less their present form but under single management. The ultimate aim should be to achieve thoroughgoing integration at all levels, within an entirely new organisational structure.” They went so far as to include a “tentative organisation chart.” (220). Their proposed new Authority would have just five Divisions: Administration and Finance, Legal, Advisory and Inspection Services, Research, and Occupational Medicine. These would be based on “some 30 or so large Area Offices, strategically located at the main centres of industry and commerce.” (223).
84. They left the working out of the complex (and sensitive) detail to the new Authority. As regards the qualifications required of inspectors, they argued that “The right mix of qualification, experience, and potential cannot be settled by some kind of predetermined formula.” (226). Yet they did set out a clear direction of travel:
“we feel that there is at present—within the Factory Inspectorate at least—too great a sense of rigid demarcation between ‘professionals’ and ‘generalists’. We see specialisation as primarily a question of function rather than of formal qualification in the academic or narrow professional sense. Within the unified inspectorate, every inspector should be a ‘specialist’ of some kind. The general inspector should become less of a generalist. Increasing specialisation should be a basic objective of recruitment and training policies. But this is not the same thing as saying that every inspector necessarily needs to have high formal qualifications. The duties of the new inspectorate would span a wide range. At one end there would be a need for very highly qualified experts. At the other end of the scale there would be work demanding in-service training rather than academic or technical qualification. In between, experience and know-how would often be more important than any particular type of specific qualification.” (228).
85. Better training was seen as a priority:
“The development of higher levels of professional competence in the broadest sense—is perhaps less a matter of recruitment than of in-service training and development. In the past there has been, at least in the larger inspectorates, a tendency to rely too much on ‘learning on the job’. More time and attention has been devoted to systematic in-service training in recent years, but a greater effort will be needed in the future. Inspectors will need to know more about management techniques, and about modern disciplines such as industrial psychology and ergonomics. This will not come about unless adequate resources are devoted to training, including concentrated off-the-job training.” (230).
86. A “fudging of basic policy remains a source of uncertainty, and an impediment to the full development of a broader and more positive role for the inspectorates.” (210). In short, the Committee concluded that for the new organisation to be effective and efficient, and able to deliver a “broader and more constructive role” (210), a radically different approach was required.
87. They envisaged a new role for inspectors to:
“seek to raise standards above the minimum levels required by law. They should advise on better organisation. They should be concerned with the broad aspects of safety and health organisation at the workplaces they visit, as much as with those narrow aspects which may have been made the subject of detailed statutory regulations. We believe that, as a matter of explicit policy, the provision of skilled and impartial advice and assistance should be the leading edge of the activities of the unified inspectorate. ... (there is) great scope for experiment with new types of inspection such as safety audits in depth, and team visits. There is also scope for closer contacts with manufacturers in connection with the planning and design of new premises, plant and equipment; and for closer liaison with the senior managements of very large industrial and commercial organisations. ... we attach very great importance to more contacts and co-operation between inspectors and workpeople and their representatives. It should be as natural for inspectors to discuss safety and health problems with workpeople and their representatives as it is to discuss them with management.” (211-213).
88. Robens declined to make any recommendation about the size of the unified inspectorate, although growth was certainly in mind: “In the immediate future the efficient reorganisation of a body of something like 1,000 inspection personnel would be a formidable task in itself, without the complication of any significant increase in numbers.” (231).
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.”
89. In essence, Robens accepted the existing split in inspection responsibility between central and local authorities on practical grounds, subject to better co-ordination and steps to tackle the “problem of unevenness in the quality of local authority inspection services and of lack of uniformity in the standards imposed by them on industry and commerce.” (236). They saw the impending reorganisation of local authorities, supported by better coordination with the 30 or so Area Offices of the new Authority, as suitable and sufficient remedies. Dual inspection should be avoided. The Report also suggested separate arrangements for Crown premises, educational establishments and hospitals.
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.”
90. It is a trait of the Report to restate, in slightly different terms, its core philosophy “that occupational safety and health law should seek to promote, as much as to control” (254); and to pray in aid other supporting voices. An example from paragraph 255 merits quoting at length because, unusually, it takes the argument to those who disagreed:
“It will be clear from what we have already said that any idea that standards generally should be rigorously enforced through the extensive use of legal sanctions is one that runs counter to our general philosophy. Our views on this are to a large degree shared by the various government departments and inspectorates who have enforcement responsibilities, as well as by some legal bodies and other interested organisations. In the submissions made to us there was a very considerable body of opinion to the effect that the sanctions of the criminal law have only a very limited role to play in improving standards of safety and health at work. We found that those who took the opposite view were unable to deal convincingly with the fundamental weakness of legal sanctions in this field—that the criminal courts are inevitably concerned more with events that have happened than with curing the underlying weaknesses that caused them. The main need is for better prevention. Technical problems of safety organisation and accident prevention are matters for experts in the industrial field, rather than for the courts.” (254).
91. This was (and remains) contentious. In his written evidence W. H. Thompson, a solicitor consulted every year by some 10,000 people injured at work, argued that this was because in practice the Factories Act was unenforced (Vol. 2, p 660). In their evidence, the TUC pointed out that “in 1969 following the Glasgow fire disaster, the number of successful convictions obtained by the Inspectorate for breaches of the fire sections of the Act increased five-fold.” They felt that this made “a strong case for holding that what is needed is a more vigorous prosecution policy directed against such offences, without waiting for an accident to happen.” (Vol. 2, p 686).
92. It is clear that Robens was persuaded by a different view of the role of prosecution, as expressed by the Chief Inspector John Plumbe in 1970:
“It is no more thinkable that there should be so many Inspectors that one could be permanently stationed at every works that that, say, every fifth motor car should be a police car to enforce the Road Traffic Acts. ... If a situation ever arose in which the Inspectorate were to attempt rigid enforcement of everything that could be driven through the Courts, so that industry ceased to turn to it for advice and guidance, the standards of safety, health and welfare set over the years in the great majority of workplaces would indeed suffer.”[14]
93. Prosecutions, even when prompted directly by injuries or by tragic events elsewhere, only achieved low fines, before Robens and for many years afterwards. In 1970, the average fine imposed for safety and health offences under the Factories Act was £40, albeit in a context where maximum fines ranged between £50 and £300. (258). This perhaps helps explain why in that year 300,000 visits made by factory inspectors resulted in the prosecution of fewer than 3,000 offences. (259).
94. Both Thompson and the TUC proposed the introduction of increased penalties, “enforcement orders” and on the spot fines. Robens accepted the need for (much) higher fines, but only within a policy of prosecuting only in the most severe cases:
“We have said that criminal proceedings are inappropriate for the generality of offences that arise under health and safety legislation. We recommend that criminal proceedings should, as a matter of policy, be instituted only for infringements of a type where the imposition of exemplary punishment would be generally expected and supported by the public. We mean by this offences of a flagrant, wilful or reckless nature which either have or could have resulted in serious injury. A corollary of this is that the maximum permissible fines should be considerably increased.” (263).
95. The Report made two further recommendations. Higher fines should be provided for “repeated offences”; and “the fact that not only corporate bodies but also individuals such as directors, managers and operatives are liable to prosecution should be spelt out very clearly.” (264).
96. The Report set out a detailed blueprint for what became Improvement and Prohibition Notices, including appeals against them to Industrial Tribunals not Courts, immediate prohibition for “a situation of imminent danger” (277) and even that non-compliance should attract “a continuing daily fine.” (269). Chapter 9 also recommended the very selective use of licensing: “the new legislation should provide powers enabling the introduction of regulations for the licensing of premises or processes dealing with particularly hazardous materials (as, for example, installations storing highly explosive substances) and for the prescription of qualifications for individuals who perform particular tasks (as, for example, crane drivers).” (282).
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.”
97. In recent years, it has been estimated that up to around half of HSE’s resources have been directed towards public safety issues. This includes much work to ensure the proper control of major hazards, but also the regulation of many other activities from construction to fairgrounds. It has, undoubtedly, caused many difficulties for HSE and local authorities, giving rise to an unofficial national sport of condemning the latest example of “elf ‘n’ safety gone mad,” from such apparently innocuous items as conkers, hanging baskets and headstones. Some were genuine, some fictional (or misreported). HSE devoted a lot of effort to countering these and the reputational damage they caused, for example by running a “Myth of the Month” campaign.
98. This was not what Robens had in mind. The above recommendation was:
“designed to ensure that the Authority for Safety and Health at Work can and does deal with hazards which arise immediately from industrial and commercial activity and which lie within the technical competence of the Authority’s personnel, whether the hazards affect workpeople, the public, or both. We wish to make it clear, however, that we are not suggesting that an all-embracing responsibility for public safety should be placed on the Authority. We can well understand the reluctance of the present occupational safety departments and inspectorates to be diverted from their traditional and primary interests by having to assume some wide-ranging and open-ended responsibility for public safety generally; and we would not propose this. The expertise of the occupational safety inspectorates must not be dissipated through involvement in a wide range of matters remote from their major concerns. What we are suggesting is a re-adjustment rather than a complete transformation of existing broad areas of responsibility.” (292).
99. The Committee were tireless in pursuing subjects of relevant concern, even where these fell outside their strict remit. In this, they were driven by the untidy existing arrangements that they came across, which they frequently described in terms such as “piecemeal” and “haphazard”. In the case of development control around hazardous activities, they found the existing arrangements to be “full of loopholes.” (303). Their solution was to take the good practice of some authorities and to mandate it:
“the arrangements for consultation between local planning authorities and safety inspectorates should not be left in their present somewhat nebulous state. They should be based on a clear and unequivocal requirement. We recommend, therefore, that in the exercise of their development control powers, local authorities should have an explicit duty to take account of the public safety implications of all applications for planning permission, and to consult the central Authority responsible for industrial safety in any case where they are in doubt.” (305).
100. The Committee called for comprehensive information and advice to be given to local authorities about the industrial hazards which should be in scope. They also flagged up two remaining issues to resolve – changes of use where planning permission was not required, and new housing or other development around existing sites. In summary, they were extremely thorough, in the interest of designing effective future arrangements, and of forestalling argument at the implementation stage. Their opinion can be sensed in the barbed acknowledgement that they gave for the publication in 1972 of a “warning list of substances which, when stored in certain quantities, can have a very high danger potential; ... an important – and in our view overdue – step.” (306).
101. Accepting that better development control was not a main line of defence, Robens emphasised also the need for new legislation to provide:
“a comprehensive regime of control from the centre over the manufacture, storage and use of intrinsically dangerous substances ... some of which would no doubt take the form of licensing ... enforced by a special unit within the inspectorate of our proposed Authority for Safety and Health at Work.” (308-9).
These ideas were developed in the next Chapter of the Report.
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 (paragraphs 311-317).
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 (paragraphs 318-321).
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 (paragraphs 322-333).
485. There should be an institutional link between the new Authority and the National Board for Radiological Protection (paragraphs 334-339).
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 (paragraphs 340-345).
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” (paragraphs 346-354).
102. Fire precautions. Again, the Committee found a mess:
“A good deal of dissatisfaction was expressed in evidence about the scattered presentation of the statutory provisions relating to fire prevention at places of work. There was also strong criticism of the complex pattern of enforcement responsibilities involving local building authorities, fire authorities and occupational safety inspectorates, a pattern which sometimes gives rise to confusion.” (314).
Their way of sorting this out was to make the fire authorities responsible for general fire precautions and the new Authority for “process risks”, with close liaison at Area level.
103. Flammable and explosive substances. Yet again, current arrangements contained “inadequacies and loopholes ... perpetuated by the piecemeal character of the legislation and of the administrative arrangements ... steps to modernise the statutory provisions appear to be hampered by a jurisdictional logjam.” (320). Their solution was, unsurprisingly, “a single, comprehensive regime of control over intrinsically flammable and explosive substances in industrial and commercial use, to be administered in the interests of the safety both of the public and of employees.” (321).
104. Toxic substances. Evidence to the Committee “revealed considerable anxiety about the potential consequences of the ever-increasing use in industry of potentially harmful chemical substances.” (322). In essence they adopted proposals first made in 1967, in the “First Consultative Document on proposed occupational safety and health legislation.” (330). They saw an authoritative Advisory Committee on Toxic Substances as critical to success.
105. Design and manufacture. As well as their by now customary criticism of current arrangements (“the nature of such requirements as exist sometimes gives rise to doubts and uncertainties,”) the Committee felt that “the burden of the statutory obligations is unfairly distributed as between manufacturer and user.” (349). They had found that a more comprehensive approach was taken abroad, under Federal German law and since 1949 in Sweden under a Worker’s Protection Act that required “that manufacturers must ensure before sale that equipment is fitted with the necessary safety devices and offers adequate security against accident and injury to health.” (349).
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.”
106. At the time of Robens the Employment Medical Services Advisory Act was about to come into force. It replaced the Appointed Factory Doctor Service—doctors within industry appointed to undertake routine examination of young persons, and adults entering hazardous occupations, which was considered a waste of scarce medical resources. The new Employment Medical Advisory Service (EMAS) would focus on examining young people whose school medical records suggested were at particular risk. EMAS’ brief would encompass the entire field of employment and, concordant with a wider political focus on productivity, provide a centre of expertise for government and industry, providing medical advice in relation to employment, training, and the rehabilitation of disabled persons.
107. Robens commended the new Act as a “useful and carefully planned step forward in the development of occupational medicine” (373), with several provisos:
“We would expect the EMAS to become part of the Authority’s organisation. Within that it would continue to have a fairly distinct identity. It would not be concerned exclusively with occupational medicine as we have defined it, but also with the medical aspects of rehabilitation, training and other employment matters. We see this as an advantage. Overseas, rehabilitation is often included within the functions of the national occupational safety organisation, and we think that the medical aspects of training and the study of broad problems such as mental health in industry and sickness absence also fit naturally into this picture. (374) ... the proposed arrangements envisage active collaboration at operational level between the Employment Medical Advisers and the National Health Service. We pick this out as being, in our view, of the utmost importance.” (375).
108. It seems worthy of note that Robens saw sickness absence, rehabilitation and mental health as areas of interest for the new Authority. In the event, it was to be some thirty years before these featured highly in HSE’s strategy and stress at work became a hot topic, upon which enforcement action began to be taken. Recalling her time as HSE’s Director General, Jenny Bacon observed that progress was in fact made on these “soft issues” much earlier, working with others in the EU, notably Finland, and supported by a good research programme; this in the face of some Commissioners and Ministers of the time.
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.”
109. The Report described in detail the extensive effort on training across industry, but overall concluded that it was too uneven and uncoordinated to be judged effective. In particular, the Committee “were disturbed ... at the apparent lack of safety training activity at the most crucial level of all – management.” (392). “Patchy and inadequate” statutory provisions for health and safety training in general needed to be corrected by a general requirement in the new Act. (393).
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.”
110. The Report was enthusiastic for there to be new thinking across the whole system. Research is a case in point:
“Generally speaking, there has been no shortage of scientific research into physical and medical aspects of occupational safety and health problems. More knowledge is needed, however, about the influence of human and organisational factors in accident causation, about the interaction of multiple causative factors in actual work situations, and about the effectiveness of preventive measures.” (397).
111. The new Authority would have a far larger role in research than hitherto. It would provide “the central mechanism needed for a more co-ordinated research effort into occupational health and safety. It should not only have power to sponsor and to support external research where needed, but adequate facilities and resources to undertake certain types of research on its own account.” (401). It would be the government’s ‘customer organisation’ for occupational health and safety research. (402). It should also be the custodian of “a really comprehensive index which would list and classify current and recent research projects.” (405).
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.”
112. In addition to the above recommendation, Robens argued that:
“the counting of injuries is at best an indirect method of measuring safety, and in practice it is difficult for the safety inspectorates to obtain more than very limited information about accidental happenings which may have considerable significance but which did not result in injury. At the level of the individual firm the application of techniques such as damage control and total loss control, which we mentioned in chapter 2, involve the systematic collection and analysis of data about unplanned occurrences as a basis for management planning for loss reduction and injury prevention. There is great scope within industry for this systematic approach to the assessment of performance and the shaping of preventive policies and measures.” (413).
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.”
113. HSE carried out a major research project before publishing The Costs of Accidents at Work in 1993, and The costs to the British economy of work accidents and work-related ill health in 1994. These were widely quoted in following years in support of the general argument that many of the true costs were hidden – but proved to be shockingly large if one looked properly. This point lay behind Robens’ interest in the subject.
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 activities.”
114. Although outside their terms of reference, the Committee “found it impossible to ignore the interplay between the compensation arrangements and the accident prevention arrangements, and the evidence of the unfortunate feedback effects from the former to the latter.” (424). The Report described five main ways “in which the system operates to the detriment of the accident-prevention effort.” (433). They also described in some detail the systems they learned of in France, Canada and New Zealand, to which they were evidently attracted. These included roles for national insurance to fund compensation and no-fault liability. The subject was examined separately by the Pearson Inquiry in 1973 but not pursued by the Government on grounds that included cost. Jenny Bacon felt that the failure to tackle this issue has been one of the biggest weaknesses in the UK’s health and safety system.
Chapter 18 – Summary
“In our preface we drew attention to the fact that the various topics within our terms of reference are heavily interrelated, and that the nature of the solution to one problem tends to depend upon the nature of the solutions adopted for others. We begin this final chapter of our report with a short general summary of the essence of our proposals, followed by a rather more detailed—but by no means exhaustive chapter by chapter summary.”
Chapter 19 – Programme of action
A programme of action, and the next steps
115. The main part of the Report concluded with a very brief outline programme of action, and a warning:
“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 difficulty of making progress where so many government departments are affected and involved. To begin by submitting our proposals to the normal processes of detailed inter-departmental consultation would simply be to lose them in the very maze we have sought to unravel.” (495).
Another passage from an earlier section of the Report on the objectives of future policy, had set out an important belief of the Committee:
“We are under no illusions that the necessary changes will be easy to make. Yet we suspect that the greatest obstacle will be not so much the intrinsic complexities of the subject as the fact that many of the arrangements under review are long established. In the words of Bagehot, ‘one of the greatest pains to human nature is the pain of a new idea’.” (42).
116. Robens would not have been surprised that much of the “pain” experienced in the two years between the publication of the Report and the passing of the HSW Act centred on domestic, administrative issues rather than on the basic tenets of the Robens philosophy; with the exception of how to institute employee involvement and representation.
117. In fairness to the Departments, this was not, as far as they were concerned, simply a product of the departmentalism that Robens so strongly disliked. According to Jim Hammer, the First Chief Inspector of Factories under HSE, the Home Office, MOD and Departments of Health and Education were “extremely concerned at the thought of the all-embracing obligations being applied to the police, prison service, fire brigades, hospitals, schools, universities, secure Establishments and the armed forces, not any longer to be protected by Crown Immunity.” (Quoted in the IOSH Research Report). These concerns were to persist and to raise some genuinely difficult questions for the health and safety system (and HSE in particular), for example over the balance between saving life and not placing emergency responders at unreasonable risk.
118. Departments did have difficulty in agreeing how fully, or even whether, to implement the Report’s recommendations on the major reorganisation necessary to create the new “Authority for Safety and Health at Work.” In Chris Sirrs’ summary, “The Robens Report seems to have generated significant administrative problems for Whitehall, with the Labour Employment Secretary Michael Foot remarking, on introducing the HSW Bill in 1974, that the report produced ‘a prolonged and intensive period of interdepartmental consultation’. These problems were less a reaction to the Report’s emphasis on self-regulation than a response to its unifying approach and implications for the machinery of government.” More colourfully, Michael Foot also described the creation of HSE as “a first-class Whitehall row.” According to Jim Hammer “every department with an Inspectorate proposed for integration, fought to retain their own.”
119. One can see the battle-lines being drawn up in Departments’ respective submissions. For instance, the Department of Employment, having recognised that “there are arguments for retaining at least some of the existing inspectorates on grounds of the peculiar character of their ‘constituency’ or of the expertise required to inspect,” argued that “while the balance of advantage may in some cases lie in the continuance of a separate inspectorate, the general advantages of unification are such that the burden of proof should fall on those who wish to maintain a separate organization rather than the reverse.” (Vol. 2, pp 206-7).
120. By contrast, the Department of Trade and Industry, having acknowledged that their Inspectorates “could function as specialist branches of a larger inspectorate under a single department or a public board concerned with the whole field of health and safety at work,” laid out four qualifying assumptions: that some of the inspectors, both specialists and others, were under-employed; that there was under the current system an “extensive duplication of effort;” and that “there would be substantial savings in overheads.”
121. They then asserted that “In the absence of strong evidence in support of such assumptions there is little point in changing the present arrangements which, in the case of this Department, ensure close contact between the Divisions responsible for wider policy in particular sectors and the specialist inspectorates which provide them with technical advice.” (Vol. 2, pp 375-6). In short, the two Departments fundamentally disagreed about the way forward, and neither side accepted that the burden of proof lay with them.
122. Domestic issues like staff terms and conditions were also important concerns. In “Accidents and Apathy” Chris Sirrs noted that “departments, in particular the Department of the Environment, resisted the demand that their safety and health functions should be devolved to a new quasi-independent authority. There were also questions about the status of inspectors and policy makers transferred to the agency: whether they would be independent of private interests, and whether they would continue to be civil servants. Fleshing out Robens’ proposals between 1972 and 1974, officials ultimately created two new agencies instead of the single national authority envisaged by Robens. The Health and Safety Commission (HSC) incorporated trade union, employer and public interests in the development of national health and safety policy, and were crown appointees, while officials working for the Health and Safety Executive (HSE) continued to be civil servants, enforcing the law, undertaking research and publicity, and providing advice to the HSC.”
123. Jenny Bacon emphasised that the decision to set up two bodies (HSC and HSE) was crucial to gaining acceptance across Whitehall. It meant that the staff were able to have Civil Service status, and thus far more discretion could be delegated to inspectors to wield the very substantial powers the new Act gave them, than would otherwise have been the case. On a lighter note Jenny Bacon also described how the Alkali Inspectorate were made to join the new body. William Whitelaw, newly appointed as Secretary of State for Employment summoned Geoffrey Rippon (Secretary of State for Environment) to an 8 am meeting at his office and in two brief sentences told him to stand down! Rippon did so without further argument.
124. Despite these challenges the HSW Act received bipartisan support in Parliament. It was passed by an incoming Labour government in July 1974 with only minor changes to a Bill presented by William Whitelaw, in January of that year. It closely reflected the Robens philosophy, having emerged largely unaltered from the various processes of negotiation and debate since the Report’s publication, (the notable exception being over worker involvement); and with the major proviso that much of the ‘pain of a new idea’ lay ahead.
125. Jenny Bacon confirmed that the public consultations on the Government’s proposals in 1973 showed, in the main, strong support, and as a result the Bill was essentially bipartisan (“a tribute to the soundness of the analysis and recommendations” in her view). Only the provisions for safety representation and consultation, and the inclusion of Agriculture remained controversial (voted down in July 1974 but then restored the following year).
126. The new “administering authority” broadly reflected the Report’s recommendations, but the differences, for instance over the separation of the Commission and Executive, and over the limited degree to which the separate inspectorates “should be amalgamated to form a unified service within the new Authority,” operating in new and more enabling ways to promote and embed the philosophy, were significant.
127. And so began HSE’s ‘journey,’ which will reach its own fiftieth anniversary in 2024. Looking back, the challenges faced by the first leaders of HSC/E appear daunting. As noted in the brief Programme of action:
“the task will be a continuing one. 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. In the long run, the most essential need will be for sustained interest and initiative.” (499).
Some conclusions
128. What conclusions may we draw from the Robens Report? The two companion documents to this paper – Unravelling the Maze and What difference did Robens make? examine what happened in response to the Report, and with what results for safety and health outcomes in this country. But the mere fact that we are discussing the Report, fifty years after its publication, as a relevant and enduring document, suggests that there are valuable lessons in how it was conducted.
129. The circumstances were of course propitious, with general agreement that the previous arrangements had run their course, to the point where they were becoming problematical. This created a fair wind for radical change, and a pretty clear idea of the general changes that were needed. That having been said, the exercise was done in such a way as to strengthen the consensus of support for the changes it proposed, as there was some significant and strongly-felt opposition to it. This in turn meant that the proposals were able to survive changes in Government on their way to the statute book very largely as presented. In part, this was achieved by making the case that the twin evils of unacceptable (and declining) health and safety standards, and the country’s relatively poor levels of productivity and efficiency were connected, and so could be tackled together by a single set of radical proposals. It also reflected the emphasis on gathering evidence and testimony during the Inquiry and in the Report itself, in support of the case Robens intended to make.
130. The appointment of a small number of members to the Committee who had showed interest, knowledge and involvement in the subject, led by Lord Robens, was crucial. He was a highly influential chair, despite being undeniably (and badly) tarnished over Aberfan. However the Report was a major collective and collaborative effort, not just the preordained ideas of a passionate and charismatic individual. Jenny Bacon noted that according to Matthew Wake “the intellectual power behind the analysis and recommendations came from John Wood”, a law professor and vice-chair to the Inquiry. With the help of the Secretariat, the Report was well and persuasively written; implicitly challenging those minded to argue against it to base their opposition on alternative evidence and testimony, rather than on doctrinaire assertion.
131. Matthew Wake himself returned to the Department where he played a key role in steering the Report through. The Report received help from many quarters; Neil Kinnock squaring opposition to it, William Whitelaw swatting aside an objection to joining the proposed new Inspectorate, Vic Feather arguing that the Report represented an important step forward, even if not everything that the Trade Unions wanted; and George Engels breaking with convention to find practical ways to translate common law principles into a new criminal Act, to name but four.
132. To the Committee, deregulation was seen as a means to a desirable end (not, as more recently by some, as an end in itself), and they would not have felt it a criticism to have that word attached to their work. It would, they argued, replace a haphazard mass of ill-assorted detail which was beginning to do more harm than good with a flexible, adaptive regime that would raise standards and promote engagement in place of apathy.
133. They believed in “a problem-oriented approach” in which the law and the activities of inspectors would both be used, quite properly, to raise standards beyond legal minima. State intervention would be much more rationally based on priorities (that is to say on the severity of hazards, the level of risks and the quality of management), and definitely not just on the passage of time since the last inspection, which they condemned as a misuse of scarce resources). The new role for the authorities would be a much broader one. Robens knew that this would cause some discomfort and provoke some opposition or even resistance (as it duly did – the “pain of a new idea”). Having concluded that the Department of Employment had made a convincing case to them for such a radical change in role, the Committee agreed, in the knowledge that the Department would be the key agent in bringing it into being; and that at the operational level, many inspectors to whom they had spoken would “welcome the challenges and opportunities presented by our proposals.” (191). In short, Robens did not just follow the fair wind there was at the time for their proposals – they worked assiduously to make the weather fair.
134. Perhaps above all else, they made the case for there to be a self-reinforcing system of aligned and complementary forces, greater than the sum of its parts and unrecognisable in comparison with the previous piecemeal and ineffective muddle. This new system would act in all its aspects in a positive manner, even for instance in the role of sanctions and enforcement – prevention by the use of Improvement and Prohibition Notices being recommended “in the majority of cases” rather than punishment by prosecution.
135. They produced a brief programme of action for the system’s complete implementation, covering every issue, with an emphatic demand that it not get lost in the usual maze of departmental consultation. It is clear that Robens deplored Whitehall infighting and the tribal reluctance of some Inspectorates to cooperate. Robens correctly identified that the Report would be met with departmental infighting rather than the unified effort that was being advocated for the new health and safety system itself, and insisted that this must be prevented.
136. Reading their words after fifty years, one is struck by their optimism and their unshakeable faith in the compelling merits of a consensual, systematic approach. In both respects the Report does now read like the product of a different and even a rather distant age. In fact tripartism was firmly out of favour by the end of the 1970’s, and so the Robens philosophy faced headwinds almost immediately. This prompts several questions. Did a naive degree of optimism, based on faulty assumptions such as that there was a “natural identity of interest” in relation to health and safety, undermine what might have been achieved by a different approach? Were they too much influenced by the voices of employers and of the relevant Government Departments and their Inspectorates, (the Department of Employment and the Factory Inspectorate in particular) as was argued at the time, and has been ever since, including by some Trade Unions, academic writers and the legal profession? In short, was “the Robens philosophy” based upon eternal truths and profound insights or upon questionable and contended assumptions? If the former, it is no surprise that the philosophy endures to this day; if the latter, questions arise about why that is the case.
137. The main purpose of this paper has been to describe the Report in sufficient detail for there to be an informed debate on such questions, which are important for thinking about the future. An exploration of these questions begins in the two companion documents to this essay: Unravelling the Maze which looks into the implementation of Robens, and What difference did Robens make? which assesses how much of the improvement in health and safety outcomes since 1972 may fairly be attributed to Robens. It is hoped to explore them in greater depth in time for the fiftieth anniversaries of the HSW Act and HSC/E, the two major and enduring creations of Robens, in 2024-25.
Footnotes
[1] In this paper, the term “Robens” is used as a shorthand term for the Committee of Inquiry as a whole, including its two volume report, “Safety and Health at Work, Report of the Committee 1970-72”; and the term “Lord Robens” for the individual.
[2] Paragraphs in the Report are numbered sequentially from 1-500. These will be given in this paper, rather than page or chapter numbers, wherever text from the Report is quoted.
[3] Department of Employment, Annual Report of HM Chief Inspector of Factories 1970, p xii.
[4] Ministry of Labour, Annual Report of HM Chief Inspector of Factories 1963.
[5] Quoted from Hansard in the written evidence of W. H. Thompson, Solicitor, on page 656 of Vol. 2.
[6] Christopher Sirrs, Accidents and Apathy: The Construction of the ‘Robens Philosophy’ of Occupational Safety and Health Regulation in Britain, 1961–1974, Social History of Medicine, Volume 29, Issue 1, February 2016, Pages 66–88, https://doi.org/10.1093/shm/hkv068
[7] Hansard, HC Deb 1 April 1955 vol. 539 col. 757.
[8] Lessons from the Aberfan disaster and its aftermath, British Academy Review issue 12 (January 2009).
[9] The quotations in paragraphs 25-28 above are taken from Human Engineering Chapters 11 (pp 175-186) and 7 (pp 121-129).
[10] Jenny Bacon was HSE’s Director General between 1995 and 2000. From August 1972 until August 1974 she headed the small “Bill Team” charged with implementing Robens. She reported to Matthew Wake, who had been the Secretary to the Committee. Jenny described his later role in the Department as essential to the successful implementation of the Report as he “knew all the key players and all the arguments.”
[11] The changing legitimacy of health and safety at work, 1960–2015 Paul Almond and Mike Esbester (with Carmen D’Cruz and Laura Mayne) University of Portsmouth and University of Reading. https://iosh.com/media/3422/the-changing-legitimacy-of-health-and-safety-at-work19602015.pdf
[12] Christopher Sirrs, Accidents and Apathy (see footnote 7).
[13] This quotation is from the 1969 Annual Report of HM Chief Inspector of Factories.
[14] Department of Employment and Productivity, Annual Report of HM Chief Inspector of Factories 1969.