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‘Two steps forward, one step back’
A brief history of the origins, development and implementation of health and safety law in the United Kingdom, 1802–2014
by David Eves
Chapter 1: The dawn of Factory Law
Health and safety law in the United Kingdom has been over 200 years in the making. Its origins lie in political responses to social problems arising from the upheaval of the Industrial Revolution and the inadequacies of earlier Elizabethan Poor Laws.
The first Factory Inspectors were appointed by King William IV in 1833. Inspectors’ reports in the long Victorian era that followed are a rich archive of contemporaneous commentaries on industrial working life. They contain many insights into the politics surrounding the changes in society, at the same time chronicling in detail the legal and technical developments needed to improve protection of workers’ safety, health and welfare. The story of the United Kingdom’s industrial development is closely entwined with the story of HM Factory Inspectorate and the development of Factory Law. Often it seems to have been a tale of ‘two steps forward, one step back’.
The narrative that follows has been based largely on Inspectors’ reports, in particular the Annual Report of HM Chief Inspector of Factories for the year 1932 which commemorated the first 100 years of the work of HM Inspectors, and information available on the web site of the Health and Safety Executive and other sources (listed), including the author’s and colleagues’ memories of their years in the Inspectorate.
The Poor Laws
The seeds of state intervention to correct social ills were sown during the reign of Elizabeth 1 by the Poor Laws, which originated in attempts to alleviate hardship arising from widespread poverty. While they were perhaps more to do with a need to contain unrest than morally motivated, they were significant in transferring responsibility for helping the needy from private hands to the state. They were a political solution for serious social problems caused by rapid expansion of the population between the 14th and 16th Centuries and a burgeoning woollen trade upon which the nation’s wealth had come to depend.
That mills existed in the 16th Century is certain but their safety was not subject to any regulation. The Chief Inspector’s report for 1936 quoted a report found concerning a fatal accident to a child in 1540:
‘a yonge childe… standing neere to the whele of a horse myll… was by some mishap come within the swepe or compasse of the cogge whele and therewith was torne in peces and killed. And, upon inquisition taken, it was founde that the whele was the cause of the childes death, whereupon the myll was forthwith defaced and pulled downe.’
Many people were being forcibly dispossessed of their homes on land needed for sheep farming and many were thrown into poverty. Widespread crime and growing unrest led to a law being passed in 1563 aimed at easing the condition of the poor, distinguishing between the ‘deserving’ and the ‘undeserving’. In 1572 a tax was laid on local communities to pay for the relief of the ‘deserving’, workhouses were established in 1576 and Parish Overseers of the Poor were appointed in 1597.
Those laws were consolidated by the Poor Law of 1601 and were not reformed until 1834, when the Poor Law Commission’s recommendations were implemented by the Poor Law Amendment Act. Parish Overseers were replaced by local Boards of Guardians (the ‘Guardians of the Poor’) that later also became Rural Sanitary Authorities under the Public Health Act of 1875. In spite of reform, the perceived humiliation of the destitute in the workhouses continued to be hated during the Victorian era. After the Ministry of Health assumed responsibility for the Poor Laws in 1918, it became clear that the system was again in need of reform. Local Boards were finally abolished when the Local Government Act 1929 introduced new administrative arrangements. After the Second World War the Welfare State was founded and Poor Laws were a thing of the past.
Yet with all their inadequacies, for over three hundred years the Poor Laws were part and parcel of a developing political, social and moral national framework within which other social reforms such as Factory Law would flourish.
The Industrial Revolution and the ‘Factory System’
The United Kingdom was the first nation to industrialise. Its Industrial Revolution is said to have begun around 1760 in Abraham Darby’s foundries at Coalbrookdale in the Iron Bridge Gorge, Shropshire. By the end of the Eighteenth century it was rapidly gathering momentum as the mechanisation of production embraced the growing textile industry. The general population was shifting from the old rural, agricultural economy to new industrial towns, the nation was at war with Napoleon and memories of the disturbingly radical ideas of the French Revolution of 1789 were fresh in the uneasy minds of British political leaders. Amid widespread unrest, demands were being made for Parliamentary reform and fairer representation of the people.
Aside from that, shocking evidence was emerging of serious physical and moral harm suffered by children and young persons in the cotton textile mills. It was not so much the fault of individual mill owners, a few of whom like Robert Owen had an enlightened approach to their workers’ welfare, as the result of an entire system for exploitation of cheap labour (the ‘Factory System’). Skilled workers employed by a ‘cotton master’ would themselves pay unskilled women and children to help them. Children were expected to work and support impoverished parents. Pauper and orphaned children were brought to the mills from poorhouses in London and elsewhere and housed in mill dormitories. They were put to work for excessively long spells, at high risk to their safety, health and welfare, and they received little or no education.
An Act for the Preservation of the Health and Morals of Apprentices, 1802
Responding to calls for remedial action from philanthropists and some of the more enlightened employers, in 1802 Sir Robert Peel, himself a mill owner, introduced a Bill to Parliament with the worthy aim of improving their conditions. Generally believed to be the first attempt to regulate conditions of work in the United Kingdom, unfortunately the failure of the Health and Morals of Apprentices Act 1802 to achieve its purpose soon demonstrated the need for further reform.
That Act (sometimes called the first ‘Factory Act’) applied only to cotton textile mills. It required employers to keep mill premises clean and healthy by twice yearly washings with quicklime, to ensure there were sufficient windows to admit fresh air, and to supply ‘apprentices’ (the aforementioned paupers and orphans) with ‘sufficient and suitable’ clothing and accommodation for sleeping. A bed was to be shared by not more than two. Their work was to be limited to twelve hours per day and night work was forbidden. They were to be taught reading, writing and arithmetic and receive religious instruction.
Fines for failure to observe these statutory requirements ranged from £2 to £5 but there were few prosecutions. Enforcement was entrusted to ‘Visitors’ appointed locally by Justices of the Peace, many of whom were mill owners themselves. Some Visitors were clergymen and mill owners were their local parishioners. This flawed system soon proved quite ineffective. Visitors were reluctant to confront their neighbours, enforcement was feeble and the law was widely evaded.
Attempts were made to strengthen the legislation in 1819, 1825 and 1831 but the Visitor system remained too weak for the law’s requirements to become the norm.
The reform movement and the Great Reform Act, 1832
Public concern about factory working conditions continued to grow as more and more women, children and young people were drawn from conditions of poverty in London and the countryside into the mills. Dissatisfaction was also mounting over a wider range of social issues and particularly over lack of representation of the major industrial towns in an unfair political system biased towards the influence of a few landed property owners. As unrest grew, concerns about maintaining law and order in London led to the passing of the Metropolitan Police Act in 1829.
By 1831 the Prime Minister, Earl Grey, judged the pressure for Parliamentary reform to have become irresistible and he persuaded King William IV that a Bill to widen the franchise should be introduced into Parliament. Although the Bill was passed by the Commons, it was defeated in the Lords, whereupon serious rioting broke out in several towns. The worst of the riots occurred in Bristol and was savagely put down by Dragoons, with many deaths exacerbating the angry public mood.
Another Bill was introduced by Grey in 1832. This time Parliament narrowly passed the Representation of the People Act (or ‘Great Reform Act’).The general election that followed and the arrival of new Members of Parliament soon led to further reforms, some the result of pressure from philanthropists such as Lord Shaftesbury, whose campaign against slavery led to its abolition in the United Kingdom in 1833. Grey also set about reforming the Poor Laws.
These and other reforms indicated a growing understanding that regulation could not simply be left to ‘the market’ and that state intervention would be necessary when the market failed to respond to the needs and wishes of society. But it would be wrong to assume that everything suddenly changed for the better. The Combination Acts of 1799 and 1800 had effectively prohibited the formation of trade unions. Although those laws were repealed in 1824, the Combination Act of 1825 denied workers the right to strike. In 1834, six farm labourers who had formed an agricultural Friendly Society were sentenced to six years in an Australian penal colony after demanding higher wages (the Tolpuddle Martyrs).
The ‘Short Time’ movement which began campaigning in 1825 was unsuccessful in pressing for a ten hour day in Yorkshire’s woollen mills. This was not achieved until the passing of the Ten Hour Act of 1850. Ordinary workers still did not have the vote and further widening of the franchise would have to await the Reform Acts of 1867 and 1884. However, in the meantime Lord Grey’s Whig government would take significant steps towards improving the working conditions of women, children and young persons in the ‘dark satanic mills’ of the United Kingdom.
The Factory Act of 1833
The 1831 census indicated that among the country’s population some three million people worked in manufacturing industry of various kinds, including almost a quarter of a million in cotton mills, most of which were in Lancashire. A significant percentage of these textile workers were women and children.
A Royal Commission (the ‘Factory Commission’) was set up after the Great Reform Act of 1832. Its inquiries swiftly exposed the exhausting working conditions and long hours endured by children, allowing them little time or energy for their education. The Commission’s report prompted Parliament to pass the landmark Factory Act of 1833, its full title being ‘An Act to regulate the Labour of Children and Young Persons in the Mills and Factories of the United Kingdom’.
After the failure of the Act of 1802, some lessons had been learned. The Act of 1833 enabled a fresh start on the long journey towards the present day’s more civilised working conditions. Recognising the importance of effective enforcement, Section 17 set out the case for change, stating:
‘…the Laws for the Regulation of Labour of Children in Factories have been evaded, partly in consequence of the want of the Appointment of proper Visitors or Officers whose special Duty it was to enforce their Execution’.
Chapter 2: Early Pioneers
A significant milestone towards effective administration of Factory Law had been reached. Under the Act of 1833, four Factory Inspectors named Horner, Howell, Rickards and Saunders, men already of standing and distinction, were appointed by King William IV and paid the handsome sum of £1,000 per annum. These Inspectors were invested with judicial and executive powers, for example to enter premises and question workers. Unusually in the case of civil servants, they were also authorised to make rules and regulations (this power was later transferred to the Secretary of State). Each Inspector had charge of a territory and reported their work separately and directly to the Home Secretary. They were required to hold two joint conferences a year but otherwise were expected to act independently.
The four were not quite alone. They were authorised to appoint Superintendents (called Sub-Inspectors after 1844) to assist them in their duties. These were at first paid £250 per annum. A few soon proved less than satisfactory and had to be dismissed. Unfortunately, thanks to an oversight Superintendents were not given powers of entry and so were often denied admission to the mills (the Factory Act of 1844 remedied this mistake).
These first Inspectors were navigating in uncharted waters, as the only other social service then provided by the state was the Poor Law, which offered them little guidance or experience to follow. A list based on information supplied by the Surveyor of Taxes identified just over three thousand factories for the Inspectors’ attention. This may not sound very many, but the daunting scale of the first Inspectors’ tasks soon became apparent. Travelling in those days mainly on horseback or by carriage, their territories included the whole of Ireland as well as England, Wales and Scotland. Theirs was a lonely, demanding job, with many nights spent away from home and family.
Within three years Robert Rickards, who had been given responsibility for practically the whole of the North of England and Scotland, died from overwork. The reorganisation that followed his death divided the country into four districts containing more or less the same numbers of factories; districts were subdivided into two or three areas, each under the charge of a Superintendent.
Unlike their local Visitor predecessors, the early Factory Inspectors took a professional, committed approach towards their duties. Deciding at first to educate employers in their new responsibilities, they arranged numerous Town Hall meetings around the country. These were generally well attended but Inspectors’ attempts to raise standards and secure compliance by enforcement were frequently challenged.
Unsurprisingly, the Act’s restrictions on employment were unpopular amongst most mill owners. It prohibited employment of children of less than nine years of age, required those between nine and thirteen to work no more than nine hours a day and those between thirteen and eighteen no more than twelve hours a day. They were to have an hour long break for lunch. No children were allowed to work at night and they were to receive two hours’ schooling for six days a week. Hours of work and meal times had to be checked by a public clock (such as may still be seen today on the Gothic clock towers much favoured by Victorian architects).
Occupation of a factory now had to be notified, so providing Inspectors with information about their clientele (this remained a statutory duty until abolished under ‘red tape’ reforms in the late 20th Century). However, the fencing (or guarding) of dangerous parts of machinery, and prevention of injury by safe systems of work, would not be required by law until the passing of another Act in 1844. In the meantime, stopping machinery for cleaning meant lost production so it was common practice to clean machinery in motion. Children, being small, were expected to crawl beneath looms and spinning machines to clear away waste or piece together broken ends of cotton. It is not surprising that many of these so-called ‘little piecers’ were caught or crushed by moving parts and badly maimed, sometimes fatally.
Having wisely decided that raising employers’ awareness of their statutory responsibilities should be their first priority, nevertheless the early Inspectors were not prepared to walk on by when they found evidence of egregious offences, prosecuting the most serious without fear or favour. For example, in 1838 they took 868 cases against 397 employers. They issued cautions for less serious offences and sometimes had occasion to press employers to dismiss offending workers, although having no power to enforce this.
Leonard Horner, Factory Inspector
One Inspector in particular, Leonard Horner, attracted numerous demands for his dismissal from office, both from mill owners who thought him over-zealous in enforcement and from ‘Short time’ activists who believed he was not doing enough. Horner seemed to be getting the balance about right.
He was an exceptional man, highly principled, something of a polymath, and an experienced businessman whose family were linen manufacturers and merchants. Well connected, he numbered amongst his friends Lord Brougham, a leading proponent of reform, the scientist Charles Darwin and the philosopher John Hume. Amongst his many contributions to society he helped found the Edinburgh Academy and School of Arts. Horner was invited to become a member of the Factory Commission that reported in 1833 and then served as a dedicated, determined and fearless Factory Inspector until his retirement in 1859. An inspiring role model for later generations, Horner is still revered as the iconic, archetypal Inspector.
Education: the role of Factory Inspectors, 1833-1920
While the 1833 Act dealt principally with restrictions on the employment of children and young persons less than 18 years of age, it was also remarkable in spelling the beginning of England’s compulsory education system, in which Factory Inspectors played a significant part during its early years. As children between the ages of 9 and 13 were required to attend school for 2 hours on six days of the week, Inspectors had to spend much time in determining their correct ages. Proof of age required a certificate to be issued to the employer by a Certifying Surgeon. Horner discovered instances of gross negligence in the performance this duty, in one case reporting that a Surgeon prosecuted for issuing false certificates had been fortunate to escape imprisonment.
Inspectors were authorised under the Act to ‘procure the establishment’ of schools. Provision of state education was still many years away and there were as yet few schools worthy of the name. For example, in Ashton under Lyne with a population of 55,000 and many mills there was only one school, and that was exclusively for Roman Catholic children. In nearby Oldham there were no schools at all. Much time was spent inspecting such schools as did exist. Inspectors often found the standards of accommodation and competence of teaching in ‘dame schools’ deplorable. A schoolmistress escaped conviction for issuing false attendance certificates on grounds that she was unable to write.
Gradually, Inspectors were able to persuade some of the more enlightened mill owners to establish schools connected with their factories (commonly known as ‘Factory Schools’). Under the Factory Act of 1844 Inspectors could annul schoolteachers’ certificates if they were of the opinion that the teacher was incapable of instructing children on grounds of their own illiteracy. Use of this power gradually removed incompetent teachers from the system. Inspectors could also allocate grants to schools from fines resulting from their prosecutions. Their half-yearly reports listed those to which grants had been made.
Later, the Committee of the Privy Council on Education appointed Schools Inspectors and by 1861 Alexander Redgrave was observing that the work of Factory Inspectors to do with schools had significantly diminished. Following the passing of the Education Act of 1870, their role in education was reduced to enforcement of attendance at school of ‘half timers’ (children who spent half their time at school and half in the factories). The half-time system lasted until it was ended by the Employment of Women, Young Persons and Children Act 1920.
Safety: the Factory Act, 1844
Victoria came to the throne in 1837, while Viscount Melbourne was Prime Minister and the Whigs were in government. The seven decades of the Victorian era that followed brought increasing national prosperity and, while occasional economic setbacks occurred, the growing wealth and relative political stability of her reign may well have created the conditions under which social reforms could be continued.
The 1840s saw rapid advances across a broad front. Steam power was transforming industrial production, steam locomotives were enabling railways to carry goods across the land, and communications were generally improving. In 1840 the world’s first adhesive postage stamp, the Penny Black, was introduced. In spite of the prevalent market philosophy of ‘laissez-faire’, for the next 150 years a broad political consensus would be maintained in favour of improving working conditions. Successive governments, whether Whig, Tory, Liberal or Labour, would all put their mark on Factory Law.
In 1841 Sir Robert Peel, a Tory, succeeded Lord Melbourne as Prime Minister. Peel’s father was one of the wealthiest textile manufacturers in Lancashire and had been politically influential in the early years of the century. The younger Peel’s landmark Factory Act of 1844 extended the law’s coverage to all textile factories (except lace-making) and took a first significant step towards improvement of workers’ safety. Under Section 20, children, young persons and women were prohibited from cleaning shafting and other transmission machinery while this was ‘in motion for the purpose of propelling the manufacturing machinery’ and from working between fixed and moving parts of machines, such as on self-acting spinning mules in which it was easy to become trapped. However, it was unclear whether the prohibition applied to idling transmission machinery.
Section 21 introduced requirements for ‘secure and continuous fencing’ of fly-wheels, water-wheels, wheel-races, hoists and teagles (lifting machinery) near to which children and young persons were liable to pass or be employed, and all parts of ‘mill gearing’ (transmission machinery).
Inspectors were authorised to appoint ‘Certifying Surgeons’ to whom, under Section 22 of the Act, any accident preventing the injured person from returning to work by nine o’clock the following day had to be reported. The Surgeon was required to make a full investigation of the nature and cause of the accident and report to the Inspector for the District. Accident investigation and the development of safe working practices based on understanding the causes of accidents could now begin in earnest.
The case of Priestley v Fowler in 1837 had been the first known civil action in which an employee successfully sued his employer. It seemed to establish the principle that an employer owed a common law duty of care to his employee which was actionable if a breach of that duty resulted in injury. Under Section 24 of the 1844 Act the Secretary of State could empower a Factory Inspector to bring an action for damages on behalf of any person who had been injured by machinery. Reports indicate that many such actions were successfully taken by Inspectors. Later in the century, Workmen’s Compensation Acts extended the legal protection of injured workers.
Inspectors were also empowered (under Section 43) to give written notice to a factory occupier that dangerous parts of machinery should be immediately fenced, an important addition to their ability to improve machinery safety (and a fore-runner of the powers to serve improvement and prohibition notices that were given to Inspectors 130 years later.) The occupier could seek arbitration over the Inspector’s decision but, strangely, would not be penalised if his appeal were unsuccessful unless someone were subsequently injured by his neglect to fence the dangerous part in question.
The Ten Hour Day
Between 1844 and 1847 the desirability of reducing the maximum length of a working day for women and young persons employed in textile factories was being fiercely debated (the ‘Ten Hour Movement’ had been pressing for a shorter working day in woollen mills since the early 1830s). Parliament eventually settled on a 10 hour day in 1847. However, lack of clarity in the drafting of the law created difficulty for Inspectors attempting to enforce the standard. Wily mill owners evaded this perceived restriction on production by employing their men for longer hours while bringing women and young persons back and forth to work in an impenetrably complicated ‘relay’ system.
The law was clarified in the Ten Hour Act of 1850, by when employers’ animosity towards the restriction had begun to subside.
Although as yet there were no specific legal requirements to provide welfare facilities (such as decent lavatories, adequate washing facilities, clean mess rooms) the early Inspectors made considerable efforts to promote better standards of welfare for workers, encouraging employers to do so voluntarily. Some soon recognised the benefits to their businesses. Money talks, and in 1848 Leonard Horner, describing one factory’s improved welfare facilities, quoted the employer as saying ‘I believe that in a merely pecuniary point of view I am repaid by having better and more willing workmen.’ (This is perhaps the earliest example of someone making out a business case for improving health and safety.)
The cotton and woollen trades were making many Victorian businessmen extremely prosperous. While many still saw Factory Law as intrusive government interference, others were softening their attitudes towards their workers’ welfare. A few went so far as to create whole new villages around their mills, containing every facility needed for their employees to enjoy decent daily living standards.
Indeed, as early as 1784, not long after the dawning of the Industrial Revolution, an enlightened Scottish cotton entrepreneur named David Dale had built new mills and housing for his workers in Lanarkshire. His son-in law, the philanthropic Robert Owen, took over the premises in 1799 and developed a flourishing industrial community managed on humanitarian employment principles. New Lanark is now a World Heritage site. Others followed suit. A fine example can be found near Bradford, where In 1851 Sir Titus Salt began building a new woollen mill and workers’ village alongside the Leeds and Liverpool Canal and railway, naming it Saltaire. It included a school, hospital, laundry, recreational and many other facilities.
The ‘secure fencing’ controversy
England remained relatively quiet while the rest of Europe was in turmoil during 1848, the ‘Year of Revolutions’. Social improvements made since the Great Reform Act had perhaps help mollify the British population. The Chartist movement that had sprung up in the previous decade, pressing for more political reform and widening of the franchise to the working classes, began to lose momentum after attempting its ‘Great Petition’ in 1848. In 1851 the Great Exhibition and sporting events such as the first America’s Cup were pleasant distractions. Having enjoyed nearly forty years of comparative peace since the end of the Napoleonic Wars, the country returned to war overseas in the Crimea (1853-56). Public attention was captured by military exploits such as the heroic, calamitous charge of the Light Brigade so nobly celebrated in verse by Lord Tennyson, or newspaper reports of Florence Nightingale and her colleagues’ dedicated nursing of the injured.
In the meantime warfare of a different kind had broken out at home between Lancashire mill owners and the Factory Inspectors. As noted earlier, Section 21 of the 1844 Act had introduced requirements for ‘secure and continuous fencing’ of fly-wheels, water-wheels, wheel-races, hoists and teagles (lifting machinery) near to which children and young persons were liable to pass or be employed, and all parts of ‘mill gearing’ (transmission machinery).
Textile machinery in the multi-storey Victorian textile mills was commonly driven by belts from extensive systems of rotating overhead horizontal shafting, belt-driven in turn by extremely powerful steam engines. Entanglement with transmission machinery usually meant serious mutilation and probable death. In spite of the evidence of numerous serious accidents, Inspectors’ enforcement of the statutory requirement to fence mill gearing aroused strong opposition from employers, particularly amongst the Manchester cotton mill owners. They argued that unfenced transmission shafting above a height of seven feet from the ground was safe by its position and fencing was thus unnecessary.
In 1854 the Inspectors issued a circular letter disagreeing with this view, stating that the experience of numerous accidents involving overhead shafting at a height greater than seven feet showed that all transmission shafting should be securely fenced (there had been 128 serious accidents, 35 of them fatal, in the previous three years).
Opposition to the Inspectors’ opinion came to a head at a meeting of manufacturers held in Manchester, where they decided to form a Factory Law Amendment Association. This local initiative soon widened, becoming the National Association of Factory Occupiers in 1855, with the objective of resisting the Factory Inspectors’ fencing requirements. In his weekly magazine ‘Household Words’ the writer Charles Dickens scathingly dubbed this ‘The Association for Mangling Operatives’.
Lord Palmerston became Prime Minister in early 1855. Within weeks, following representations by a deputation of angry mill owners, he instructed Inspectors that the circular letter requiring secure fencing ‘should be for the present suspended and need not be acted upon’. (This was perhaps the earliest of rare occasions on which Ministers have felt obliged to exercise powers of direction over an otherwise independent safety regulator.) But the Minister seems soon to have changed his mind, and another circular from the Inspectors announced that Lord Palmerston required them to ‘institute proceedings to enforce the law, which requires that horizontal shafts shall be fenced… it becomes the duty of the Inspectors to require all occupiers of factories… to adopt adequate means for securely fencing their horizontal shafts’.
The saga continued. Leonard Horner had frequent clashes with recalcitrant employers and in November 1856 the Association petitioned the Home Secretary, Sir George Grey, for Horner’s removal from office. The heat behind their attack is detectable from the petition’s colourful language:
‘We, the undersigned, occupiers of factories in the district of Mr Leonard Horner, beg to submit that the conduct of that gentleman, from his first entrance on the administration of his office to the present day, has been harsh, unfair and injudicious; has therefore created a strong feeling of distrust towards him, and increased the unpopularity of an unequal and unpopular Act of Parliament.
The continuation of Mr Horner, in his office being, therefore, calculated to bringing the law into still greater disrepute, and the Government into frequent, unnecessary and injurious collision with the people, we earnestly solicit his removal.’
Fortunately for Horner and the authority of his colleagues, the petition did not succeed in its intent. Nevertheless, opposition from mill owners continued. After a case in the Queen’s Bench upheld the Inspectors’ requirements for fencing of overhead shafting, Colonel Wilson Patten, a Lancashire MP, citing ‘the great oppression’ suffered by his constituents (employers) under the existing law, introduced a Bill intended to amend the fencing requirements of the 1844 Act and introduce arbitration in the event of a dispute between occupier and inspector.
In spite of a passionate defence of the fencing requirements by the Inspectorate’s Parliamentary supporters, Patten’s Bill was passed as the Act of 1856, considerably limiting their scope. Inspectors now found themselves deterred from issuing notices to fence mill gearing for fear of losing the argument at arbitration and damaging an injured person’s chances of receiving damages. This setback was unfortunately left uncorrected until the Act of 1891.
Chapter 3: Onwards and upwards: the later 19th Century
Big Ben began chiming over the rebuilt Houses of Parliament in 1859, a year which saw the founding of the Liberal Party, created by a fusion of Whigs and Peelites, and the return of Viscount Palmerston as Prime Minister until 1865, when he was replaced by Gladstone. Advances in Factory Law followed thick and fast. Factory Acts were passed in 1861, 1864 and 1867, a year that saw another significant Reform Act doubling the size of the electorate.
The Factory Act, 1867
The Factory Act of 1867 significantly altered certain aspects of safety regulation contained in earlier Acts, for example transferring some responsibilities from factory occupiers to the owners of factory premises or owners of machines. The powers of inspectors were extended, for example enabling them to serve notice with regard to any grindstones which appeared to be unsafe, and proceed to arbitration if necessary. (Grindstones by their very nature could not be securely fenced in practice and so their use was technically illegal. Inspectors applied the ‘Nelson Touch’ to this anomaly for many years until the making of the Abrasive Wheels Regulations in 1970, after the Government was told by the judge in a damages case to regularise the position.) The Act made other changes: for example, accidents in iron mills and blast furnaces did not need to be notified unless the injured person was prevented from returning to work within 48 hours.
Step by step, the scope of the law was widening. In 1861 and 1864 there had been modest increases in the numbers of Sub-Inspectors to cope with the extension of Factory law to certain specified trades deemed dangerous and needing regulatory oversight. The 1867 Act further extended the law’s cover to some other specified trades and to ‘any premises in which fifty or more persons were employed in any manufacturing process’. A Workshops Extension Act also of 1867 applied to similar premises where fewer than fifty were employed.
These Acts added greatly to the numbers of premises requiring inspection and it was decided to hand enforcement of the law in smaller ‘workshops’ to local sanitary authorities. This soon proved to be a very unsatisfactory arrangement. Factory Inspectors retained power of entry to workshops but could not prosecute the occupiers for any infringements; local authorities were not obliged to enforce the law and in many cases did not bother to enforce it at all.
After four years it was agreed that involving local authorities had been a failure. The Factory and Workshop Act of 1871 transferred enforcement in workshops to Factory Inspectors, by when the Inspectorate numbered 35 Inspectors and sub-inspectors. Even so, the situation in workshops remained unsatisfactory, as the relevant law provided fewer safeguards for workers in these premises than in factories employing more than 50. For example, children were required to spend fewer hours in school than factory children, hours of employment and meal times were not fixed, and notice of occupation did not have to be given to the Inspector.
This anomalous situation was allowed to continue until a Royal Commission was appointed in 1875 to review the law’s numerous amendments since the Act of 1802. Their report in 1876 led to major consolidation of the laws and removal of anomalies by the Factory and Workshop Act, 1878. Periodic consolidation exercises of this kind would become an important element in Factory Law’s administration as its scope and complexity increased over the next 100 years.
The Factory and Workshop Act, 1878
The first Test match between England and Australia took place in 1877 but England’s loss on Melbourne’s cricket ground was only a temporary distraction for Parliamentarians. As well as consolidating previous Acts, in passing the 1878 Act Parliament took a long stride forward in the development of Factory Law, for which history gives the credit to the Prime Minister, Benjamin Disraeli. By bringing almost all of manufacturing industry within scope of the law, in three clearly defined classes of Textile Factories, Non-Textile Factories and Workshops, protection of workers’ safety, health and welfare was greatly advanced.
Factory Inspectors’ workload increased considerably as a result. Non-Textile Factories included certain specified premises such as shipyards for the first time. Greater protection was afforded to women and children: from now on children under the age of ten could not be employed anywhere and between the ages of ten and fourteen they could be employed only for half days (and must attend school). Women were allowed to work only up to 56 hours per week.
The law with respect to secure fencing of dangerous parts of machinery and reporting of accidents remained much the same but children were no longer allowed to clean machinery while it was in motion and women and young persons were not allowed to clean mill gearing in motion. However mill gearing did not have to be securely fenced if deemed equally safe by its position or construction, a matter of opinion that would provoke arguments between Inspectors and factory occupiers until well into the late 20th Century.
Alexander Redgrave, HM Chief Inspector of Factories, 1878-1891
Coincidental with the 1878 Act, Alexander Redgrave, who had been clerk to earlier Inspectors, became the first Chief Inspector of a now more unified organisation in the Home Office’s ‘Factory Department’. (Inspectors tended to refer to the headquarters of the growing Inspectorate as ‘the Department’ until long after the Second World War.)
Redgrave’s Annual Reports make many references to improvements in fencing of machinery and advances in methods of accident prevention, and it is clear from these that by now Inspectors had come to be seen as expert technical advisors to industry as well as educators, investigators and enforcers of the law. Moreover, the Inspectorate’s influence was no longer confined to the shores of the United Kingdom. For example, Redgrave became concerned about conditions in the textile mills of the far flung British Empire and Colonies and campaigned with others such as Lord Shaftesbury for legislation to improve conditions. An India Factories Act of 1881 closely followed the wording of the 1878 Act.
Highly respected, Redgrave served with distinction and influence until his retirement in 1891. Like Leonard Horner, he is remembered as a worthy member of a pantheon of outstanding Victorian Factory Inspectors.
In the past it had been necessary for Factory Inspectors to uphold the right of a person injured at work to compensation. The Employers’ Liability Act 1880 gave a worker the right to sue the employer, but the worker had to prove that the injury suffered was the employer’s fault. However, under the Workmen’s Compensation Act of 1897 it became necessary for a worker only to prove that the injury had occurred at work.
Over a century later, some 100,000 personal injury claims for injuries at work were succeeding every year, usually pursued on the worker’s behalf by a trade union and met from employers’ liability compulsory insurance (‘ELCI’). By 2010 the total annual bill for compensation was costing around £300 million. However, claims were increasingly being made for non-work related injuries and road traffic accidents, often pursued on behalf of a claimant by a firm of specialist lawyers on a ‘no win, no fee’ basis. As a result the new Coalition Government began considering ways of curbing what some politicians and the media were controversially calling ‘the compensation culture’.
The principle of employers’ liability had been maintained in Section 47 of the Health and Safety at Work etc. Act 1974, which said: ‘Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise.’ To the dismay of trade unions, measures taken by the Coalition Government in the Enterprise and Regulatory Reform Act 2013 included amending the 1974 Act to remove employers’ strict liability for workplace injuries in civil cases.
The Factory Act, 1891
Passed in the year of Redgrave’s retirement, the amending Factory Act of 1891 tightened several aspects of existing safety law. Powers were given to the Secretary of State to certify machinery or processes as dangerous and make Special Rules. Twenty two ‘codes’ followed, mostly dealing with dangers to health, but three covered Chemical Works, Explosives Works and, perhaps incongruously at first sight, the Bottling of Aerated Water (a process accompanied by high risk of injury from flying broken glass). Significantly, the first requirements were introduced for provision of adequate means of escape in case of fire. Women were not to be employed before four weeks after confinement, and the minimum age at which children could be employed was raised to eleven. The criterion for reporting accidents changed yet again, now being any that prevented a worker from doing five hours’ work on any day during the next five days.
An expert Inspectorate
Aside from these changes to the law, steps were taken towards development of an expert Inspectorate. Soon after the Act of 1844 had introduced machinery guarding requirements it became clear to the Factory Inspectors that they needed to keep abreast of the many technological innovations that were advancing industrial productivity so rapidly, in order to ensure proper safeguarding of dangerous parts of machinery and adequate control of injurious dust and fumes to which workers were being exposed.
In 1892 the first Inspector of Textile Particulars was appointed and given the task of giving technical advice both to fellow Inspectors and the textile industry, including the manufacturers of textile machinery. As the role of Inspectors as technical advisers to industry became more prominent other specialists were recruited. In 1899 an Engineering Inspector of Factories was appointed, initially for the purpose of advising on the provision of exhaust ventilation in textile factories and the problems of maintaining tolerable humidity and temperature for workers in weaving sheds. After electricity began replacing steam power, in 1902 Mr G. Scott Ram was the first to be appointed to the post of HM Electrical Inspector of Factories.
The Dining Club of HM Inspectors of Factories, 1888
As the Victorian decades wore on, the tasks of Inspectors had become ever more demanding but their morale was high. In the wake of the massive workload created by the 1878 Act’s extension of Factory Law, Redgrave paid tribute to his staff’s enthusiasm and commitment in his annual report for 1878:
‘With these multifarious duties we are now prepared to cope to the best of our abilities. I write with full and ample knowledge of the earnestness of all members of the staff, who are ever ready to render their services useful to the public, regardless of personal convenience, whenever their duties call upon them for the sacrifice of their time and the exercise of their influence.’
In 1888 a private dining club was formed by the Factory Inspectorate with the simple purpose of holding an annual black tie dinner. Today this would be called a team-building event. Every Inspector was entitled to membership, which was based on the simple premise that everyone would pay their own way and enjoy an evening together at least once a year. The Chief Inspector was the club’s President and a senior Inspector chaired a small organising committee of fellow volunteers.
The club and its annual dinner survived for over a century, always meeting at the expense of its members, who usually invited the Minister of the day as their principal guest. The Duke of Kent, who briefly served in the Home Office as a Factory Inspector, famously attended the 1933 dinner held at the Connaught Rooms in London to celebrate the Inspectorate’s first 100 years. In 1983 a dinner to celebrate 150 years was held in the City of London at the Plaisterers Hall. The centenary of the first women Factory Inspectors was commemorated at a dinner held in Manchester Town Hall in 1993. It was a fitting location, with memories of the epic efforts of Leonard Horner and his contemporaries.
By the late 20th Century the annual dinner, often held in one of London’s Livery Halls, had become an opportunity to entertain visiting colleagues from the Inspectorates of other Member States of the European Union or members of the International Association of Labour Inspection. Sadly the ever increasing costs of funding prestigious formal dinners eventually became too great for the club to sustain, though its traditions are maintained to this day at informal regional lunches organised by members of the Association of Former Inspectors of the Health and Safety Executive.
Lady Factory Inspectors, 1893
Alexander Redgrave had doubted the suitability of women for the work of an Inspector, commenting in his Annual Report for 1879: “I doubt very much whether the office of factory inspector is one suitable for women… The general and multifarious duties of an inspector of factories would really be incompatible with the gentle and home-loving character of a woman…”
However, after Redgrave retired in 1891 his successor, R. E. Sprague Oram, took a rather different view, conscious of support in Parliament for the campaigns for the appointment of women being pursued by the Women’s Protective and Provident League and the London Women’s Trades Council. In 1893 the first two female Inspectors, May Abraham (based in London) and Mary Paterson (in Glasgow) were appointed with salaries of £200 a year. Soon there were four and later more.
Known at first as ‘Lady Inspectors’, they were women of redoubtable personality. Often ladies of independent means, they perhaps needed to be, as for many years they were paid less than their male colleagues. At first they were employed in a separate Women Inspectors’ Branch of the Home Office Factory Department, specialising in the laundry trades, Truck Acts and other matters generally to do with women’s employment. They were the first Inspectors to identify asbestos as harmful to workers’ health.
The Prime Minister, Herbert Asquith, answering in 1895 a question in the House of Commons raising the need for a female inspector in the textile industries of Ireland, declared that they were expected to work anywhere in the United Kingdom where their services were required. He added:
“Notices are exhibited in all factories and workshops in Ireland where women are employed, stating that complaints may be sent to the female inspectors, and all such complaints are promptly inquired into by one of the female inspectors. With the staff and resources which are at present at my disposal, I think that the female inspectors are more usefully employed in peripatetic visits than if they were stationed in particular districts. Special attention has been and is being given by one of them to Irish industries.”
One of the first was the remarkable Adelaide (later Dame Adelaide) Anderson, a graduate of Girton College, Cambridge. Appointed in 1894, she was made HM Principal Lady Inspector of Factories in 1897 and led the work of the Women’s Branch until its merger with the general Inspectorate in 1921. A new post of HM Deputy Chief Inspector was then created to which Constance Smith was appointed. Dame Adelaide left the Inspectorate but continued working in health and safety, for example at the International Labour Office where she assisted the Chinese in setting up their Inspectorate.
While no woman ever became HM Chief Inspector of Factories, Miss Audrey Pittom CB, a Deputy Chief in the great tradition, was appointed Under Secretary in charge of health policy when the Health and Safety Executive was formed in 1975. She is credited with having raised the profile of occupational health by insisting that the title of the 1974 Act should be ‘Health and Safety at Work’ in preference to ‘Safety and Health at Work’. The phrase ‘Health and Safety’ has since become firmly fixed in the nation’s vocabulary.
The inestimable contributions made by female Inspectors were commemorated in ‘Women of Courage’, published in 1993 to mark the centenary of their first appointments.
The Factory Act, 1895
The 1891 Act was soon followed by another in 1895 making further amendments to fencing provisions, provision of fire escapes and reporting of accidents. Accidents had also to be recorded in a register kept for inspection at the factory (known colloquially as ‘the accident book’). Eighty years later Inspectors would still be concluding inspections by examining the register, always a useful opportunity to discuss their findings with the employer.
Laundries were included within scope of the Act. Courts could make orders on the complaint of an Inspector, prohibiting the use of dangerous machinery or workshops until they were made safe. The health of workers was now climbing up the agenda. For example, important requirements for reporting industrial diseases were introduced, requiring medical practitioners to report cases of anthrax infection and poisoning from lead, phosphorous or arsenic to the Chief Inspector of Factories.
Occupiers of factories also had to notify any cases of disease to the local Certifying Surgeon whose duty it was to investigate. Suitable washing facilities were required where lead, arsenic or any other poisonous substance was used and a reasonable temperature had to be maintained in workrooms. A minimum of 250 cubic feet of space had to be allowed for each worker or 400 cubic feet during overtime working, to prevent overcrowding.
These were all worthwhile changes but added further complications to an already quite complex system of law, soon being described by some contemporaries as a legal ‘patchwork’. The 1901 Act would be a valiant attempt to make better sense of it all (see Chapter 8).
Chapter 4: Truck, piecework, home-work and ‘sweating’
Safety, health and welfare had now become the mainstream of the Victorian Factory Inspectors’ work but they had other enforcement duties in the areas of ‘truck’, payments for piecework, home-work and the ‘sweated’ trades.
The ‘truck system’ was the common practice of paying workers wholly or in part by goods rather than money. It was open to serious abuse by employers. Truck Acts dating from 1464 were intended to prevent employers from paying workers in kind, not in money, or from making deductions from wages, but had never been properly enforced. In 1831 an amending and consolidating Act attempted to ensure that workers were only paid in ‘coin of the realm’ but failed to establish a public enforcing authority. It was left up to workers to seek redress in the courts but they were naturally reluctant to take actions against their employers.
The Truck Amendment Act of 1887 gave responsibility for enforcement to the Factory Inspectors. Characteristically, they took the matter seriously but a lack of clarity in the law created many administrative difficulties. An Act of 1896 attempted to solve these problems but difficulties persisted. The Inspectorate’s supervision of ‘truck’ continued in the early years of the Twentieth Century under another Act of 1897 but their efforts were frequently thwarted by problems arising from poor legal drafting. Yet another attempt was made to improve matters in 1908 when a Departmental Committee was set up to inquire into the workings of the Truck Acts and whether fines and deductions of wages should be prohibited. Its failure to reach consensus on recommendations resulted in the law remaining unchanged.
Fortunately times were changing. After the Great War the need for the Truck Acts and the Piecework Particulars Sections of the Factories Acts, designed to ensure that workers received their proper wages for work done, diminished as the abuses they were intended to correct died out. By 1921 the Chief Inspector was able to report that ‘Truck no longer persists as a system of management; it has been displaced by real “welfare”. Truck Acts remained on the statute book until repealed by the Wages Act 1986; their principles survive in the Employment Rights Act 1996.
Inspectors grappled more successfully with another contentious problem arising from the practice of ‘Piecework’ in the Lancashire cotton trade. Weavers and other workers were usually paid by ‘the piece’. Payment depended on numerous factors such as width, number of ends per width, number of picks per quarter inch, length, and thickness in the piece of cloth woven. Without being told these ‘Particulars’ by employers, workers and their trade union representatives experienced great difficulty in ensuring they received correct payments. Even when Particulars were supplied, these were often found to be incorrect, invariably to the worker’s disadvantage. In one notorious case an unscrupulous employer was discovered fraudulently using a yard stick 39 inches long to determine what should be paid.
The Weavers’ Association took this vexatious issue up with their MPs and Parliament was persuaded to legislate for provision of correct Particulars by the inclusion of a requirement in the Factories Act of 1891 (Section 24). In 1895 another Act extended the requirement to cover all textile labour where piece work wages were paid, and the 1901 Act added a requirement that details of the ‘basis and conditions’ of payments should be posted up in every workroom.
At first the Particulars requirements were enforced by District Inspectors of Factories. However it soon became apparent that expert technical knowledge of the textile trades was needed if enforcement was to be effective, and in 1892 the first specialist Inspector of Textile Particulars was appointed.
From 1898 onwards the Secretary of State was empowered to extend the requirements to non-textile factories or workshops by way of Special Orders. A number of these were made.
Between 1893 and 1903 prosecutions of employers for failure to comply with the Particulars requirements averaged 38 a year, peaking at 59 in 1901. By 1932 the Chief Inspector was able to report that since 1922 the average had been six, and that employers were generally complying well with the requirements. The work of Inspectors of Textile Particulars continued until 1964 when, after the last one retired, it was undertaken by specially trained Nominated Inspectors. In practice there was now little for them to do.
Home-work and the ‘Sweated’ trades
Long before the Industrial Revolution began sucking labour from the countryside into new manufacturing towns, the wives and daughters of labourers in the rural economy had been working at home in numerous cottage industries throughout the land. Many textile-related cottage industries fell into sharp decline as the organisation of work based on factories with mechanical power took hold towards the end of the Eighteenth Century. However, some kinds of home-work persisted throughout the 19th Century in the form of a ‘Contract’ system (also sometimes known as the ‘Sweating’ system). This usually involved a contractor, such as a clothing supplier, giving out work to sub-contractors, usually men, who either made garments themselves at home or in a workshop or sub-let their subcontract to men and women working with or without help from their children in their own dwellings or workshops. Where they employed labour directly in their homes, these later became ‘workshops’ subject to regulation under Factory and Workshop law.
Nevertheless, such home-based workshops remained lightly regulated until the 1860s, by when public awareness and disquiet about bad conditions in these premises had grown to a point where further action was demanded. The work was not confined to the textile industries; light manufacturing of all sorts of other goods including metalwork was also common. By a Workshop Act of 1864 sanitary conditions were regulated for the first time in certain home-based industries and in 1867 the definition of a workshop contained in the Workshops Regulation Act brought home-workers under the wider protection of Factory law.
These were steps forward, but difficulties in administration of the 1864 and 1867 Acts soon led to their repeal on the recommendation of the Factory Commission of 1876, which was a backward step. The Factory Act that followed in 1878 at least enabled inspection to begin in most kinds of workshops but excluded dwelling houses where only residents were employed.
The ‘Sweating’ system continued to arouse concern, particularly after a large influx of immigrant labour into trades such as clothing, cabinet-making and boot and shoe-making during the 1880s and 1890s in the so-called ‘sweatshops’ of East London. The premises in which these trades were carried on were often decaying slum dwellings.
The Act of 1891 required lists of out-workers to be kept by factory occupiers or owners and in 1895 these lists were required to be sent to the local Factory Inspectors twice yearly. However, as inspection of out-workers was largely a matter for Local Sanitary Authorities, the consolidating Factory and Workshops Act of 1901 required them instead to be sent to Local Authorities. That Act also made provisions relating to ‘unwholesome and infectious premises’ but in practice little changed, as lists were usually incomplete and in any case Local Authorities did not have the resources to follow them up.
In 1907 politicians responded to growing public concern about conditions in ‘sweated’ trades by appointing a Select Committee of the House of Commons to examine the problem. Their report in 1908 led to regulation of the payment of wages by the Trade Boards Act of 1909 which brought trades such as chain making, box making, lace-mending and finishing and ready-made clothing within scope.
Further inquiries into home-work by the Factory Department took place in 1925 and 1931, by when many of the old ‘sweated’ trades had died away. Home-work and out-workers continued to be part of the industrial system for some time longer but diminished in importance as more mechanisation and mass production methods were introduced.
Chapter 5: Casting the net wider
Factories were not the only area of employment causing concern about working conditions in the 19th Century. As the scope of Factory Law widened and Factory Inspectors grappled with an ever-expanding workload in factories and workshops, new Inspectorates were established from time to time as Parliament decided that regulatory oversight of safety would be desirable in other industrial sectors. These arrangements would remain distinctly separate until a unified national authority was established in the late 20th Century.
Mines and quarries
In 1840 a Royal Commission was established to investigate working conditions in coal mining. By 1842 the Commission had reported serious failings by owners along lines similar to those found in the textile mills. Their report prompted Parliament to pass the Coal Mines Act 1842, which prohibited women and children from working underground. The Act also provided for the appointment of an Inspector of Mines and the first, Hugh Tremenheere, commenced his duties in 1843. With only limited powers he nevertheless undertook many prosecutions and recommended improvements such as training of managers in safety, reporting of fatal and serious accidents and provision of pithead baths and suitable homes for miners.
In 1866 361 miners were killed in explosions at Oaks Pit, Barnsley. At the beginning of the 20th Century the chances of a miner being killed were about ten times that of a factory worker. Britain’s worst industrial disaster occurred in 1913 when a firedamp explosion ignited by a spark from electrical equipment, followed by a massive explosion of coal dust, ripped through the Universal Colliery at Senghennydd, Wales, killing 440 miners. Sadly it was not the last major disaster in Britain’s deep mines; 266 men were killed by an explosion at Gresford Colliery, Wrexham in 1934 and other major accidents would occur.
There was a noteworthy difference between the regulation of mines safety and factory safety in their penalties for breaches. Factory law relied on the imposition of fines for offences until the late 20th Century but the Metalliferous Mines Regulation Act of 1872 allowed for imprisonment for serious breaches of Mines safety law. The 1872 Act also enabled Mines Inspectors to make Special Rules.
A Quarries Act of 1894 brought quarries using steam power within the Inspectors’ remit, empowering them to enforce the notification of accidents, make Special Rules and take prosecutions for serious offences at quarries as well as mines.
Coal production remained a national priority for decades to come until the decline of the industry began after the Second World War. The Mines Inspectors, all qualified mining engineers, remained proudly independent until 1975, when they were marshalled alongside the Factory and other Inspectorates in the newly formed Health and Safety Executive (see Chapter 11).
In 1840 an Inspectorate was established to oversee the safety of Britain’s new, fast developing steam railways. These were being proposed, built and operated by numerous private companies, attracting huge speculation in the hope of profits. Safety was not yet given a high priority. In 1830 at the opening of the Liverpool and Manchester-Darlington railway, the Liverpool MP, William Huskisson had been struck down-and killed by a steam locomotive, Stephenson’s Rocket, as he stepped across the rails to greet the Duke of Wellington. Alarm mounted over the frequency of fatal train crashes and risks to the safety of the travelling public and a Railway Regulation Act was passed in 1840, requiring companies to report accidents to the Board of Trade. Railway Inspectors were appointed to investigate accidents, to examine proposals for new railway lines and inspect them for safety as they spread across the country.
The Railway Inspectorate later became part of the Department for Transport. It was transferred to the Health and Safety Executive in 1990 and then to the Office of the Rail Regulator in 2006 (see Chapter 17).
Regulation of safe manufacture and storage of explosives also required specialist attention but was not entrusted to the Factory Department. Instead, under the Explosives Act of 1875 a separate cadre of specialist Inspectors was formed in the Home Office to license explosives works. This early form of ‘permissioning’ the operation of major hazard works would become the regulatory practice of choice for regulation of all major hazard industries in the late 20th Century.
After exactly 100 years at the Home Office, Explosives Inspectors joined other specialists and Factory Inspectors within the Health and Safety Executive in 1975. The 1875 Act and another of 1923 remained largely untouched on the statute book until 2005 when new Manufacture and Storage of Explosives Regulations were made.
In parallel with the development of factory legislation, there was increasing public concern in the first half of the nineteenth century about the safety of seafarers and fishermen. This became a responsibility of the Marine Department of the Board of Trade in 1850. The first major Merchant Shipping Act addressing these concerns was adopted in 1854. During this period there was a very active parliamentary lobby group, ‘the shipping interest’, who opposed restrictions on maritime business and tried to lay the blame for shipping casualties on poor seamanship. But as losses of shipping increased through unscrupulous overloading, pressure from Samuel Plimsoll MP led to a Royal Commission in 1872. Merchant Shipping Acts of 1876 –1894 included the marking of a safe load line on the sides of ships’ hulls (the ‘Plimsoll Line’).
Disasters such as the sinking of the Titanic in 1912 spurred action to require the provision of sufficient lifeboats for passengers and crew and generally improve ship design and management, but the regulatory focus remained for some time on preventing the loss of vessels rather than on aspects of the health and safety of merchant seamen and deep sea fishermen.
From the 1920s onwards the International Labour Office promoted conventions aimed at improving the working conditions, safety and health of seafarers. International regulation of this global industry slowly evolved, with the International Maritime Organisation Convention for Safety of Lives at Sea (SOLAS) setting out the minimum requirements for ship safety in 1974. It was not until the ILO Maritime Labour Convention of 2006 that the earlier conventions were consolidated with other requirements for decent working conditions at sea to create a ‘Seafarers’ Bill of Rights’.
A system of enforcement gradually took shape. A Preventative Waterguard was formed in 1809 to combat smuggling but it also helped rescue shipwrecked mariners. The Waterguard became HM Coastguard in 1822 and later ceased to be concerned with smuggling and revenue protection, concentrating more on search and rescue. The Coastguard subsequently became part of a new Maritime and Coastguard Agency (MCA) of the Department for Transport in 1998. The MCA aims to prevent loss of life on the coasts and at sea, and is responsible for implementing the UK government’s maritime safety policy by inspecting ships to ensure they meet safety rules. It is also responsible for certifying seafarers, registering vessels and coordinating responses to pollution from shipping and offshore installations in the UK.
Factory Inspectors were not involved in maritime matters until Docks Regulations were made in 1924 and again in 1934, whereby their remit was extended to include enforcing safety requirements specifically for dockside work and in the loading and unloading of vessels. The regulations were revised in 1988. In 2012 HSE controversially proposed their revocation, together with an approved code of practice, in favour of non-statutory guidance.
Whilst a State Veterinary Service was established in 1865 arising from concerns for the health and welfare of animals and risks to human beings from zoonoses, the general health and safety of farm labourers remained unregulated for most of the 19th Century. However, some serious accidents that followed the introduction of some fearsomely dangerous agricultural machinery led to the Threshing Machines Act of 1878. Boiler explosions often occurred on traction engines through running out of water on their journeys between villages, and these incidents were notifiable to the Board of Trade under the Boiler Explosions Act 1882. The safety of chaff cutting machines was addressed by an Act of 1897, surprisingly enforced by policemen.
After a long hiatus, in 1952 controls were introduced over pesticides. But it was not until 1956, after 183 farm fatalities had occurred in the worst ever year recorded, that an Agriculture (Safety, Health and Welfare Provisions) Act would require notification and investigation of accidents and diseases occurring at agricultural premises. Under the Act Inspectors of Safety, Health and Welfare were appointed within the Ministry of Agriculture, Fisheries and Food and given powers to enter and enforce requirements for the protection of agricultural workers’ and children’s health and safety. Those Inspectors were transferred to the Health and Safety Executive in 1977, the year of Queen Elizabeth’s Silver Jubilee.
Gas preceded electricity by many decades as a source of civic and industrial lighting. Its first recorded use for street lighting was in 1792, in Redruth, Cornwall and throughout most of the 19th Century gas produced from coal (‘towns gas’) lit the streets and factories of Great Britain. The first electric street lighting was installed at Godalming in 1881 and soon began replacing the less efficient gas lights. By the end of the 19th Century electricity was also fast replacing steam power for industrial production, just as steam had earlier replaced water.
The new technology was attended by new risks of fire, explosion and electrocution. At first causation was poorly understood. In 1897 the Factory Department’s Dangerous Trades Committee reported their concern that 14 fatal electrocutions had occurred at electricity generating and substations over the previous five years, and recommended that these premises should be brought within scope of Factory Law.
The law was extended to ‘electrical stations’ by the Act of 1901, which empowered the Secretary of State to make regulations for ‘dangerous trades’. The first Electrical Inspector of Factories, Gilbert Scott Ram, was appointed in 1902. After a public inquiry had been held to examine proposals drafted by Scott Ram, the first special regulations for electrical safety were made in 1908. An innovative explanatory ‘Memorandum’ prepared by Scott Ram was issued in 1910, aimed at helping factory occupiers to understand how to comply with the new regulations (an early example of a regulatory code of practice). Meanwhile, in 1905 the Home Office’s Mines Rules Committee had introduced Special Rules for electrical safety in mines, enforced by Mines Inspectors.
The 1908 Regulations were amended in 1944 to extend their cover to certain additional electrical processes, shipbuilding and repair, building operations and works of engineering construction work. Revised from time to time, Scott Ram’s clear and helpful memorandum was kept up to date until replaced by guidance when new Electricity at Work Regulations were made in 1989.
From the beginning, investigation of electrical accidents and assisting Factory Inspectors in enforcement of the regulations was a task for specialist Electrical Inspectors who were qualified electrical engineers and organised as a separate Branch of the Inspectorate. By the 1970s the Electrical Branch had grown to approaching 30 Inspectors.
The insurance industry
Alongside the regulator, private insurance companies have played a significant part in raising industrial safety standards since Victorian times. After the introduction of requirements in Factory Law for employers to have periodic thorough examinations of their pressure vessels and lifting machinery carried out by a ‘competent person’, insurance companies recognised a commercial opportunity to provide a service to meet the statutory requirements. Larger companies such as Eagle Star employed qualified ‘engineer surveyors’ whose role was to inspect plant and issue certificates of examination. These would be sent to the District Factory Inspector if they recorded any matters requiring rectification and, depending on their seriousness, the Inspector could decide whether any enforcement action should be taken. Lower insurance premiums might sometimes be offered by insurers to employers who could demonstrate improvements to safety.
The engineering institutions
It is also important to acknowledge the significant contribution of Britain’s great engineering institutions to the advancement of health and safety, by way of the accumulated wealth of their members’ technological understanding and standards of engineering competence. A number of these professional bodies had their origins in the early Nineteenth Century and outstanding Victorian engineers such as the Stephensons, Brunels and Faraday were influential members.
As the Factory Inspectorate’s cadre of specialist Engineering Inspectors increased, so did the number who were qualified members of major professional bodies such as the Institutions of Mechanical Engineers, Civil Engineers, Mining Engineers, Electrical Engineers and Chemical Engineers. The qualifications, experience and competence of these Inspectors, independently recognised by their membership of the Institutions, lent great authority to the Inspectorate’s technical advice and investigations and later to the reputation and international standing of the Health and Safety Executive. Several of the Executive’s senior Inspectors and scientists became prominent figures in their professional bodies, Mr AC Barrell for example becoming President of I Chem E. Some such as Dr J McQuaid and Dr AF Ellis were honoured by their election to the Royal Academy of Engineering.
Alexander Redgrave’s interest in improving working conditions in the Empire has already been mentioned. There is also evidence of the Inspectorate’s interest, seventy years before Britain joined the European Economic Community, in learning from and contributing to the health and safety experience of its European neighbours and trading partners. The Chief Inspector’s annual reports for 1895 and 1896 devoted whole chapters to analyses of the systems in Germany and France.
Inspectors often visited Europe to gather technical information; for example, Hilda Martindale, one of the first lady inspectors, toured France and Belgium in 1902 to examine conditions in laundries. Over the years to come, Inspectors would be seconded for short periods to assist Commonwealth countries. Several became their Chief Inspectors. British training continued to be in great demand; for example, between 1957 and 1972 there were always at least six, sometimes twelve inspectors from overseas attending courses for British trainee Inspectors. In 1969 and 1971 the demand was such that the Inspectorate held courses arranged exclusively for overseas inspectors.
Chapter 6: Industrial health in the Victorian era
Some knowledge of work-related diseases clearly existed in the early 19th Century but it was a long time before their prevention was given priority. Possibly the first recorded reference to a Works Doctor was mentioned in 1830. In 1831, Dr Thackrah of Leeds published a book entitled ‘The Effects of the Principal Arts, Trades and Professions’, drawing attention to some of the industrial diseases of the time, such as lead poisoning suffered by house painters. He also suggested means of removing dust from factories by exhaust ventilation. But when the 1833 Act was introduced little thought seems to have been given to the need for legislation to protect the health of workers, apart from reducing the fatiguing hours of employment of women and children and ensuring cleanliness.
Certifying Factory Surgeons
Although the 1844 Factory Act was chiefly concerned with protecting workers from certain dangerous machinery and further reducing the hours of work of women and children, health protection took some small steps forward. The Act empowered Factory Inspectors to appoint doctors for certifying the ages of children for employment purposes (these doctors were called ‘Certifying Factory Surgeons’). Women, young persons and children were prohibited from employment in wet flax spinning, where they would be exposed to hot water and steam.
Inspectors also encouraged mill owners to employ their own factory doctors. Some actually did. For example, Leonard Horner gave an account in 1845 of how a firm employing 850 workers in Lancashire employed a doctor at a salary of £200 a year based on £40-50 paid by the firm and the remainder by a penny a week levy on workers’ wages exceeding four shillings. The doctor held a well-attended surgery at the works every day between noon and one-o’clock and would visit workers in their homes if they were too unwell to attend the factory.
Sir John Simon’s Inquiry into industrial diseases
By the 1860s, concern about the high death rate from lung diseases in certain industrial occupations led to an inquiry into the causes by Sir John Simon, Chief Medical Officer of the Privy Council, who declared that ‘The canker of industrial diseases gnaws at the very root of our national strength.’ The Factory Act of 1864 included a requirement that ‘every factory shall be ventilated in such a manner as to render harmless, so far as is practicable, any gases, dust or other impurities generated in the course of manufacture, that may be injurious to health’. The sentiment in that clause survived the next century of factory legislation, with words of more or less the same effect included in Section 63 of the Factories Act 1961.
Almost fifty years after Dr Thackrah of Leeds had made his suggestion, Section 36 of the 1878 Act at last required exhaust ventilation by means of a fan for the removal of dust likely to be injurious to health. The Act also empowered Inspectors to require better sanitary conditions. Children and young persons were prohibited from employment in certain industries and processes such as manufacture of white lead and silvering of mirrors by the mercurial process.
It was still common for meals to be taken in workrooms. Section 39 of the 1878 Act enabled a significant advance in health protection by empowering the Secretary of State to make orders prohibiting women and young persons from taking meals in rooms where processes gave off dust. The Chief Inspector, Alexander Redgrave, quoted from Charles Dickens’ ‘All the Year Round’ in drawing attention to the dangers of white lead manufacture. Prohibition orders were made for large numbers of factories, including white lead works.
Further important steps were taken in the Act of 1891, which empowered the Secretary of State under Section 8 to certify processes that in his opinion were injurious to health; Inspectors were then able to serve a notice requiring the occupier of a factory to adopt such special measures as seemed to the Chief Inspector to be ‘reasonably practicable’. The minimum working age of children was raised from ten to eleven. Enforcement of sanitary conditions of workshops was transferred from Factory Inspectors to Local Authorities and responsibility for ensuring the education of children aged between 10 and 14 was transferred from the Inspectors to another Department.
Lead poisoning remained a perennial problem still looking for a solution. The Guardians of the Poor made representations to government that more needed to be done, based on the large number of workers, mainly women, suffering from industrial lead poisoning that were being admitted to infirmaries and claiming Poor Relief. The Guardians’ intervention prompted an inquiry led by Alexander Redgrave into conditions in white lead works (otherwise known with typical British gallows humour as ‘white cemeteries’). In 1883 an Act was passed with specific reference to these works. A certificate now had to be obtained before a factory was allowed to commence white lead production (an early example of regulating by ‘safety case’ and granting ‘permission’ to operate, which was to become the favoured approach to certain hazardous industries a century later).
Under Section 8 of the 1891 Act, Special Rules could be made by the Chief Inspector for chemical works and processes such as those involving lead, arsenic, phosphorous, requiring precautionary measures to maintain cleanliness, the wearing of protective clothing and respirators by workers, and the provision of washing facilities. Persons employed in white lead manufacture were required to be examined weekly by the Certifying Factory Surgeon and medical examinations at varying periods were introduced for workers in other processes believed likely to be injurious to health.
In 1895 a Dangerous Trades Committee was appointed by the Secretary of State to advise whether existing Special Rules were sufficient. The committee sat until 1899, inquiring deeply into numerous industries and processes, and making several reports about their attendant hazards. For example, while mercury poisoning had long been recognised in the millinery industry, lead and flint dust in the ceramics industries were now exposed as serious health hazards. Poisoning from exposure to arsenic was identified as a serious risk to health in colour printing, lithography and wallpaper manufacture (Napoleon Bonaparte is said to have died at St Helena from exposure to arsenic given off from damp wallpaper, though some dispute this.)
There was no lack of evidence of other diseases caused by industrial processes and materials. Women employed in match factories were scandalously exposed to white (yellow) phosphorous, causing the disfiguring ‘Phossy Jaw’ disease, the ‘match girls strike’ of 1888 and eventually the international prohibition of use of the dangerous substance by the Berne Convention of 1906, implemented by an Act of Parliament in Great Britain in 1908. Other industrial diseases began to attract the attention of the Factory Inspectors, such as cases of naphtha poisoning in India rubber works, absorption of carbon bisulphide in rubber vulcanising, or anthrax infection in the wool sorting trade arising from wool or hair imported from abroad.
The Factory Inspectorate was determined to find means of preventing these diseases. Its capability was strengthened in 1899 by the appointment of the first specialist Engineering Inspector, initially for the purpose of advising on the provision of exhaust ventilation in textile factories and the problems of maintaining tolerable humidity and temperature for workers in weaving sheds.
Regulation of industrial health under Factory law was not the only pressure brought to bear on employers. Mention should be made of the influence of other significant legislation, such as for improvements in public health and environmental protection (see Chapter 7) or for compensation of workers suffering from industrial disease.
Whereas the Workmen’s Compensation Act of 1897 had related solely to injury by accident, in 1906 the Act was extended to cover six scheduled industrial diseases: poisoning by lead, mercury, arsenic and phosphorus, and anthrax and ankylostomiasis. The Act gave the Home Secretary the power to add others to the schedule and in the face of pressure from trade unions, a number were added over time such as silicosis, Weil’s disease, poisoning by carbon monoxide, Raynaud’s disease, cadmium poisoning. Byssinosis and pneumoconiosis were covered by separate legislation.
Anthrax and the Government Wool Disinfecting Station
In 1879, Dr JH Bell had been the first to identify anthrax as the cause of ‘Woolsorters’ disease’ affecting persons working with wool and hair in the textile trades of Bradford, Yorkshire. This particularly nasty disease usually had fatal consequences, and efforts were made to control it by regulations. Disinfection of wool and hair was considered but ruled out as impractical by a Departmental Committee on Anthrax appointed in 1895. The following year reporting of cases of anthrax was made compulsory but it soon became clear that manufacturing processes could not be guaranteed to destroy the source of infection, materials imported from certain parts of the world such as the East Indies were far more dangerous than others, and there was no way of telling whether materials contained anthrax spores.
A second committee appointed in 1913 recommended establishment of disinfecting stations in those countries with higher risks, international co-operation in a scheme of disinfection, and the immediate establishment of a disinfecting station in Great Britain. Government accepted their recommendations but the war years intervened and it was not until 1919 that an Anthrax Prevention Act was passed for the purposes of controlling importation of goods likely to be infected with anthrax. An Order in Council put this into effect in 1921, when a disinfecting station was opened in the port of Liverpool.
Compulsory disinfection undoubtedly reduced the numbers of fatalities from anthrax infection but the disease was never totally eradicated. The Government Wool Disinfecting Station closed in 1971 after it was deemed that disinfection by private companies had reached satisfactory standards.
HM Medical Inspectors of Factories
Although it is clear that industrial health problems were being taken seriously by the Inspectorate in the closing years of the 19th Century, it still had no doctors on its staff. In 1896 Dr Arthur (later Sir Arthur) Whitelegge, who had been County Medical Officer of Health in the West Riding of Yorkshire, was appointed HM Chief Inspector of Factories and in 1898 he appointed the first Medical Inspector, Dr Thomas Legge.
By the turn of the century Dr Legge (later Sir Thomas) had begun taking an interest in the high number of cases of lead poisoning suffered by house painters, who were still not protected by Factory law. He prepared a free advisory leaflet, ‘Lead poisoning: How caused and how best prevented’ for distribution amongst painters, explaining in plain English how they could help themselves avoid exposure to lead dust and fumes. It was the first of many such free leaflets and became an exemplary model for future regulators.
Plainly, by the early 20th Century much had become known about the ill-health effects of exposure to toxic dusts and fumes. For example, Legge had concluded that a safe exposure level could be determined for the amount of lead in atmosphere which could then be controlled by exhaust ventilation and monitored. Numerous regulations and orders for the protection of workers’ health were made in the first decade of the new century, such as for wool, goat hair, camel hair, horsehair, East Indian wool (for protection against anthrax); paints and colours containing red lead, lead smelting; vitreous enamelling. A second Medical Inspector, Dr Collis, was appointed in 1910 and commenced a study of pneumoconiosis caused by respirable dust. The ‘Chief Inspector’s Instructions’ (known by Inspectors as ‘CII’) and ‘Factory Department Memoranda’ for 1915 provided Inspectors with detailed guidance on how to deal with all of these hazards and more.
However, there was a setback in 1926 when Legge resigned from the Inspectorate in disgust at the Government’s refusal to ratify the 1921 international Convention on White Lead. Legge did not abandon his interest in protecting workers’ health: in 1930 he was appointed Medical Consultant and Adviser to the Trades Union Congress, as were other Medical Inspectors later such as Dr Robert Murray, who also worked at the International Labour Office in Geneva.
Additional health protection regulations were made between the two World Wars, some requiring medical examinations of workers. Harking back to the 19th Century’s system of Certifying Surgeons, a new countrywide system was established whereby Appointed Factory Doctors (‘AFDs’, usually local GPs), would carry out medical examinations of young persons and any workers employed in processes subject to certain regulations, such as for lead or chromium plating. Much later, in 1973, an Employment Medical Advisory Service (‘EMAS’) was formed within the Department of Employment. The Factory Inspectorate’s Medical Inspectors were transferred to EMAS but returned when the Health and Safety Executive was formed in 1975.
The deeply unsatisfactory story of asbestos regulation deserves special mention. In the 19th Century the miraculous fire-resisting properties of this fibrous mineral were leading to its widespread industrial use. By the turn of the century the first women Factory Inspectors had drawn attention to exposure to asbestos dust as liable to be seriously injurious to health, causing a condition that soon came to be described as ‘asbestosis’. But it was not until 1931 that Regulations were made in an attempt to prevent this lung disease. Unfortunately the regulations were narrow in scope, limited to a few potentially dusty processes and practically unenforceable. It is believed that only one successful prosecution was ever taken under the 1931 regulations.
Medical and scientific understanding of asbestos-related diseases and their prevention grew very slowly, not helped by the fact that asbestos-related diseases could take many years to manifest themselves, long after exposure had ceased. By the 1960s links had been made between blue asbestos and mesothelioma. It still proved difficult to secure agreement with the industry on extending regulatory controls and progress was painfully slow. New regulations were finally made in 1969.
A breakthrough occurred in the 1980s when stripping of asbestos, an inherently dusty process, was regulated by the Asbestos Licensing Regulations of 1984, which involved Inspectors in assessing the competence of contractors. In the following year regulations were made banning the importation, supply and use of blue and brown asbestos in workplaces. Use of white asbestos, mistakenly believed to be less problematic, was finally banned in 1999.
In 2006 further regulations consolidating the earlier rules were made in the wake of a European directive but improvements were necessary after the European Commission found that the UK had failed to implement the directive to the Commission’s lawyers’ complete satisfaction. Their intervention resulted in the making of the Asbestos Regulations 2012. A revised Code of Practice was approved in 2013.
Deaths are sadly still expected to occur from earlier exposures.
Chapter 7: Public health and environmental protection
The social and political pressures for improvements in the 19th Century applied not only to the conditions under which many had to work but to their general living conditions as well.
In 1842 an inquiry conducted at his own expense by a secretary to the Poor Law Commission named Edwin Chadwick, reported that ill health caused by poor sanitation was often the chief cause of a person or family sinking into poverty. Chadwick, who was a barrister and friend of the influential philosopher John Stuart Mill and the social reformer Jeremy Bentham, next threw his considerable energy into leading a long but eventually successful campaign to improve sanitation.
The Public Health Act of 1848 rewarded his efforts by enabling Local Authorities to appoint the first Inspectors of Nuisances. These were quite separate from the Factory Inspectors appointed nationally by the Secretary of State. Numerous serious public health issues needed urgent attention. For example, fatal outbreaks of cholera frequently occurred in the overcrowded industrial cities. It was not until 1854, when Dr John Snow famously removed the handle from the pump in Broad Street, Soho, preventing its use by local citizens for their supply of drinking water and halting an outbreak, that the connection between cholera and foul water was made. The appalling state of the drains in London and other major cities led not only to bizarre incidents such as ‘the Big Stink’ of 1858 that temporarily brought London to a standstill, so dreadful was the stench, but to further outbreaks of disease. These were halted only when the hugely expensive new sewerage system proposed for London in 1859 by Joseph Bazalgette was finally completed in 1875.
Inspectors of Nuisances were later known as Sanitary Inspectors and these formed a professional Association of Public Sanitary Inspectors in 1883. During most of the 20th Century they were called Public Health Inspectors and more recently they have become known as Environmental Health Officers (EHOs).
After the Association introduced professional qualifications for its members, their standing in the public eye steadily rose. The status of the professional body was recognized in 1984 by the award of a Royal Charter. Today the Chartered Institute of Environmental Health (in Scotland, the Royal Environmental Health Institute of Scotland – REHIS) claims some 10,000 members working for public health across the globe. Its London headquarters building is fittingly named Chadwick House.
From the beginning, the public health regulatory regime was seen as distinctly different from that for health and safety at work, though there was of course some overlap. For example, under the Factories Acts of the 20th Century provisions relating to sanitary conveniences in factories were enforced by Local Authorities’ Public Health Inspectors, to whom Factory Inspectors would refer deficiencies observed during their general inspections. Over time, strong professional working relationships were forged between them to the general benefit of public and industrial health.
However, neither of their respective remits encompassed regulatory control over industrial pollution of the atmosphere, in spite of manifest ill health effects. By the middle of the 19th Century, ‘smogs’ (a toxic combination of smoke and fog caused by the prodigious burning of coal) were frequently blanketing Britain’s industrial towns and cities, crying out for regulatory action. Acts of 1845 and 1847 were the first attempts to regulate the production of smoke from railway engines and factories. In 1863, concern about the escape of acidic gases into the atmosphere from chemical works producing soda by the ‘Leblanc’ process prompted Parliament to pass the first Alkali Act in 1863. The Act enabled the establishment of a separate Alkali Inspectorate, at first consisting of a single inspector, Angus Smith, and four sub inspectors. A policy for control of emissions harmful to the environment soon began to evolve, leading to scheduling of additional processes and the measurement of emissions, particularly from the so-called ‘smoke stack’ industries.
Smith believed that the relationship between inspectors and the relative few major companies involved in heavy chemical production should be deliberately close and co-operative, considering it to be the best way of securing the costly expenditure on improvements in emissions control for which industry would have to pay. (This strategy was to lead critics in later years to suggest ‘regulatory capture’ of the Inspectorate by the major companies they were responsible for regulating).
The Act of 1863 was replaced and extended in scope by the Alkali, &c. Works Regulation Act 1881, which included cement works (where the smell of the calcining process was the main source of complaints), widened again by the Alkali, &c. Works Regulation Act 1892, and finally replaced by the Alkali, &c. Works Regulation Act 1906. This Act survived with some amendments until replaced by the Environmental Protection Act 1990.
During the 1920s the Inspectorate’s’ responsibilities expanded beyond the chemicals industry to embrace all the heavy polluting industries. The Clean Air Act of 1956 enabled Alkali Inspectors to enforce controls over smoke, grit and dust given off at registered processes, by when Alkali Inspectors had been accepted by industry as the technical judges of the ‘Best Practicable Means’ (BPM) required to control emissions to atmosphere. The building of very tall chimneys was one such means. Later, they would require controls to be the ‘Best Available Technology Not Entailing Excessive Cost’ (BATNEEC).
Local authorities had also become involved in enforcing controls over atmospheric pollution. A Public Health Act in 1875 contained a section addressing the issue of smoke abatement. It would be many years however before smoke was brought under effective control. London’s notorious ‘pea souper’ fogs and ‘the Great Smog’, a dense cloud of atmospheric contaminants (mainly products of coal combustion) which blanketed the city for several days in December 1952, were thought to have killed or severely damaged the health of thousands. Local authorities were enabled to create smoke free zones and their powers were extended by the Clean Air Act of 1956.
On the face of it, environmental protection legislation seemed to have little or nothing to do with health and safety at work. Forming a separate, specialised Inspectorate to regulate industrial atmospheric pollution in 1863 seemed entirely appropriate to the government of the day, as earlier governments had already acted similarly in regulating safety in factories, mines and on the railways. A century later an attempt to unify and cement relationships between the Alkali Inspectorate and various other ‘industrial’ inspectorates within a single national agency proved problematic.
In 1972 one of many recommendations in the report of Lord Robens’ Committee into safety and health at work had been that the Alkali and Clean Air Inspectorate should be brigaded with other inspectorates and form part of a new, national industrial health and safety regulator. Much to the dismay of members of the Inspectorate and its supporters who protested that environmental regulation should be kept firmly separate from health and safety regulation, in 1975 Ministers agreed to the transfer of the Inspectorate from the Department of the Environment to the new Health and Safety Executive.
However, in 1974 the Environment Secretary had asked the influential Royal Commission on Environmental Pollution to review the causes of industrial pollution and how well the relationships were working between the regulatory authorities involved. In 1976 the Commission published its Fifth Report (Air Pollution Control: An integrated approach) criticising the decision to move the Alkali Inspectorate into the health and safety authority and recommending, inter alia, the formation of a separate, independent Pollution Inspectorate.
This unhappy conflict of opinions poisoned the relationship between the Inspectorate (which remained in its own building) and the Health and Safety Executive (headquartered elsewhere) for a number of years. Rebadged as the Industrial Air Pollution Inspectorate (IAPI) between 1983 and 1987, the Inspectorate may well have breathed a collective sigh of relief when Ministers decided in 1987 to return it to the Department of the Environment, where it was known as HM Inspectorate of Pollution. However this new found identity was lost in 1996 when the Inspectorate was divided between a new Environment Agency for England and Wales and the Scottish Environment Protection Agency (SEPA) under the Environment Act 1995.
European regulation of major hazards for safety and environmental reasons ensured that the Environment Agencies and Health and safety Executive would in future need to collaborate closely as the United Kingdom’s ‘Joint Competent Authority’ under major hazard Directives.
Chapter 8: Consolidation and advance: the early 20th Century
By the end of the 19th Century the ad hoc addition of sundry legal requirements since the consolidating Act of 1878 meant that Factory Law had again become a messy and confusing patchwork. The several Acts that had accumulated on the statute book were next consolidated and amended by the Act of 1901.
The Factory and Workshop Act 1901
Although described by the Chief Inspector in his 1932 report as ‘the fine old Act of 1901’ in fact the Act made relatively small additions to the law relating to safety, though it was an important consolidation exercise. It simplified the ‘Special Rules’ procedures under which the Secretary of State was empowered to certify classes of machinery, plant, processes as dangerous or certain kinds of manual labour. Steam boilers were required to be examined every fourteen months and be fitted with a safety valve, steam pressure gauge and water level gauge.
The 1901 Act was by no means the end of the story, rather a new beginning, for a new century. The minimum working age of children was raised to twelve years. There were a number of other legislative changes during the years leading up to the First World War, such as the Notice of Accidents Act 1906. In 1908 the first regulations relating to electrical safety were made.
The Home Office Industrial Museum
In 1910 the Treasury sanctioned the establishment by the Home Office of ‘a Museum for illustrating methods of securing the safety, health and welfare of industrial workers’. After the passing in 1913 of a special Act of Parliament, the Public Buildings Expenses Act, a sum of £25,000 was made available. A building in Horseferry Road, Westminster was completed by 1914 but was immediately commandeered for other uses during and following the Great War.
In 1926, when the building became available at last for its intended purpose, a comprehensive range of exhibits, many generously donated by companies, was assembled over the Museum’s three floors. It soon became a magnet attracting visits by Manufacturers’ Associations, Trade Unions, factory managers, foremen and workers, medical and technical college students, apprentices, and visitors from abroad. The Chief Inspector declared in his annual report for 1932 that ‘the Museum is a practical indication that the Factory Department is more ready to help in the betterment of industrial conditions than to seek penalties for breaches of the Acts.’
Over the decades that followed, generations of Factory Inspectors would serve short spells at the Museum, both to receive training themselves and to help visitors understand the causes and prevention of accidents and industrial diseases. Inspectors gave public lectures and conducted educational tours at the Museum and many young apprentices passed through its doors, their attention captured by exhibits showing grisly images of scalpings at drilling machines or the ravages of anthrax. Many Inspectors from far flung corners of the Empire, such as Hong Kong, came to receive technical training there. It was the model for a similar institution established in Bombay by the Indian Inspectorate.
The Museum survived the Second World War and was renamed the Industrial Health and Safety Centre, but after the years of austerity and underinvestment that followed, it was sadly unable to keep up with the advance of industrial safety and health technology. In 1975 it became part of the Health and Safety Executive. On 30 June 1980, deemed no longer cost effective, it received its coup de grace when budgetary pressures finally forced its closure. The building is now the Centre for the London Regiment of the Territorial Army.
The Great War, 1914-18
Perhaps because rather than in spite of the terrible War that broke out in 1914, Factory Law continued to develop. The work of the Inspectors, far from being seen as a burden on industry, was encouraged by Ministers to continue during the war years, putting greater emphasis on ensuring the welfare of workers. This was necessary as factories of various kinds were converted to other uses for the war effort, such as the making of munitions in which women were employed in great numbers. Interestingly, the Chief Inspector’s Instructions to Inspectors in 1915 had nothing to say about this, as if everything remained quite normal. But there was considerable opposition from factories directly involved in war work and any penalties handed down by Magistrates for breaches of Factory Law were usually derisory.
Although the working population at home was exposed to Zeppelin bombing raids as well as industrial hazards, the deaths, injuries and ill health they suffered at work seemed slight by comparison with the appalling death toll of soldiers fighting in the trenches. But the manufacture of munitions was not without its occasional catastrophes. In 1916 an explosion of two hundred tons of TNT at a gunpowder mill near Faversham, Kent killed 115 workers. In 1917 an explosives factory blew up in Silvertown, East London, killing 73 workers and local residents and damaging hundreds of surrounding buildings. The blast was said to have been heard a hundred miles away. Before the war ended another factory blew up in Nottingham, killing 134.
Under Section 7 of the Police, Factories (Miscellaneous Provisions) Act of 1916, the Secretary of State was empowered to make Orders for any class of factories or workshops requiring special provision to be made for the welfare of workers. The making of welfare orders continued after the Great War ended and by 1932 twenty four were on the statute book. These were for industries where workers were exposed to heat and dirt, such as in clay factories, oil cake mills, cement works, glass and bottle works, or to wet conditions such as in herring curing, gut scraping, laundries and tanning, or where work was very heavy, such as in tinplate works.
The making of regulations and their enforcement by regulatory authorities are not the only drivers of improved safety and health at work. Regulations generally have little effect unless those who are regulated see the point, are receptive to change and willing to put their shoulders to the wheel, adding value to the system by sharing their knowledge and experience. In return, Inspectors have always made considerable efforts to help them, so far as limits on resources allow, for example by participating in local safety groups or by giving lectures.
Throughout the 20th Century industrial safety and health in Britain benefited greatly from the efforts of the more enlightened firms, their trade associations and willing individuals. New voluntary bodies emerged, dedicated to improving safety. A noteworthy example is the movement which began life in 1917 as the British Industrial “Safety First” Association. Formed by private manufacturing companies in London, Sheffield and Birmingham, in 1924 the Association amalgamated with the London Safety Council and Safety First movements covering road and domestic accidents. The name was changed to the National Safety First Association, which in 1941 became the Royal Society for the Prevention of Accidents (RoSPA). The charity’s invaluable work in safety training and campaigning for improvements continues to this day.
The Twenties and Thirties
After the war, as munitions factories closed or reverted to their original purposes, the forces of social and political change became unstoppable. The campaigning of the Suffragettes and the huge contribution that women had made to the war effort finally won them the vote in 1918, when the Representation of the People Act enfranchised women over the age of thirty. A rising political force, the Labour Party founded by Keir Hardy and others in 1900, won its first general election and briefly held office in 1924. The country was suffering severe post-war economic difficulties; coal production and profits from mining had slumped and there was pressure to reduce miners’ pay and increase their hours.
In 1922 the Irish Free State, later the Irish Republic, was established and later formed its own Factory Inspectorate. Northern Ireland chose to remain part of the United Kingdom (see Chapter 12). The reintroduction of the Gold Standard in 1925 strengthened the pound but worsened prospects for exporting British goods on which the nation’s wealth depended. In the meantime trade unions had become strong in every major industrial sector. Attempts to make further reductions in miners’ pay and conditions in 1926 led to the Trades Union Congress calling a General Strike. In 1928 the franchise was extended to women over 18 years old, the same as for men. Labour was returned to power in 1929 and served until 1931. By then the Great Depression had begun.
But for workers’ safety and health it was not all bad news. In spite of the country’s economic difficulties, the development of Factory law continued. The provisions of the 1901 Act were augmented by the Factories and Workshops Act of 1929. Numerous new regulations and orders continued to be made in the 1920s, adding to the law’s detail and complexity. In preference to regulating risks arising from single hazards, regulations were made for whole processes such as for cotton cloth factories, chemical works, docks, cinematic film manufacture, grinding of metals and cutlery, and woodworking machinery (so legalising the use of dangerous machinery that by its very nature was impossible to fence securely).
Just as Great Britain had begun to recover from the economic damage caused by the First World War, and shortly after the election of the second Labour Government, the global Great Depression (or Slump) started with the Wall Street Crash of 1929. By the end of 1930 British unemployment had more than doubled to 2.5 million as exports fell and heavy industry contracted. By 1932 it was 3.5 million. But in spite of the severe hardship caused by all this, the decade witnessed a remarkably prolific period of regulation-making for safety, health and welfare. Rather than a halt being called amid cries of too much ‘red tape’, between 1930 and 1939 no fewer than 34 sets of prescriptive regulations and welfare orders were made, covering a range of diverse hazards to be found in chromium plating processes, cement works, sugar factories, docks (again), aerated water, kiers, cinematograph film stripping, operations at unfenced machinery, sanitary accommodation, gasholders, chains, ropes and lifting tackle.
The Inspectorate’s fortunes also prospered. Chief Inspectors of Factories were usually knighted for their services in those days. Looking back over the first 100 years, in 1932 the Chief Inspector Sir Duncan Wilson was able to report that the original cadre of four had by now expanded to 246. The three thousand factories on the first register had grown to over a quarter of a million and numbers were steadily increasing as workshops expanded and converted to mechanical power, bringing them within scope of Factory Law.
Publication of the Chief Inspector’s annual report for 1932 attracted considerable press attention and an article appeared in the Times on July 20th written by Sir Malcolm Delavingne, commemorating a century of factory legislation. It told how Parliament had legislated first to protect children and then women from excessive hours of work, then for safety and health and welfare, and how the Factory Inspectors ‘descended on industry as reformers and healers of the harsh and inhuman conditions which marred the early story of the industrial epoch. With the authority of Parliament they gave effect to the nation’s kindlier sentiments and generous feelings.’
However, a less sentimental article in the Manchester Guardian expressed the view that ‘we are still far from having reached a point at which we can overwhelm ourselves with congratulations… the great defect of the Factory Acts is that they are not a code but a mass of definitions, enumerations, and exceptions into which the layman ventures with fear… our legislation has been built up by specific enumeration, and has left gaping holes.’
This prescriptive, piecemeal approach towards regulation would nevertheless continue for the next forty years.
The Factories Act 1937
King George V’s Silver Jubilee celebrations in 1935 lightened the gloom of the Great Depression. Yet another consolidation exercise was completed by the Factories Act 1937, which had the effect of providing for the first time a comprehensive code for safety, health and welfare applicable to every factory, irrespective of whether it was a textile or non-textile factory and whether or not mechanical power was used. Many new requirements included safety provisions for lifting machinery, floors and stairs, safe access and safe place of work, steam and air receivers. Ships under repair in harbour or wet-dock and works of engineering construction were brought within scope.
Chapter 9: The Second World War and post-war years
Meanwhile Hitler had risen to power in Germany. When war broke out in 1939, Britain’s national wartime government again recognised the importance of keeping the civilian workforce safe, nominating the work of Factory Inspectors as a reserved occupation. Nonetheless, some Inspectors who had remained in the Reserves since the previous war chose to serve their country again in the Forces. In order to cope with the Inspectorate’s wartime workload it became necessary to recruit temporary replacements, whose appointments were made permanent after the war ended. Typical of these dedicated volunteers was Miss Norah Curry, educated at Cheltenham Ladies College and Girton College, Cambridge, who later served as District Inspector, Bethnal Green and Deputy Superintending Inspector, Glasgow. The need for feeding shift workers at factories also led to special Canteen Advisers being recruited during the war; some of them chose to stay on afterwards as Inspectors.
Most Inspectors voluntarily involved themselves in Civil Defence, the Home Guard or as air raid wardens or fire watchers, outside of their official duties. Aside from the difficulties of performing inspections and investigations during the Blitz, when an air raid warning might sound at any moment, Inspectors found themselves with a host of additional tasks, such as advising on construction of air raid shelters or helping wardens enforce fire watches against incendiary bombs. Their work included having to grapple with knotty problems such as how to maintain adequate lighting and ventilation in factories while ensuring the keeping of ‘the Black Out’. Travel was often disrupted by enemy action and Inspectors could spend hours stranded on trains.
Curbing excessive hours of work was also a challenge, with employers faced by pressures to increase production for the war effort. Indeed, regulatory emphasis shifted towards loosening restrictions on hours of work for production reasons, although welfare remained important. In 1940 the Factories (Medical and Welfare Services) Order was made, reinforcing the inspectors’ efforts to persuade companies to employ medical and welfare staff. Inspectors even became involved in issuing permits for wellington boots, industrial clogs, gloves, towels and thermos flasks, a function that continued for some time after the war.
In spite of Inspectors’ best endeavours, in some premises standards of safety inevitably slipped a little under wartime production pressures but accident prevention committees, forerunners of today’s safety committees, were encouraged and began to flourish. The Royal Society for the Prevention of Accidents (RoSPA) was enlisted to help train the safety officers that some companies began to appoint. There was little in the way of new regulation but useful improvements to electrical safety were made in the Electricity Regulations of 1944.
A Labour Government was elected in 1945 as Britain emerged from the Second World War, heavily indebted but still ranking as one of the world’s great manufacturing and trading nations. As the Empire began to decline, India won its independence from the Crown in 1947 and as other countries followed suit over the next twenty years the British Commonwealth of Nations emerged to take the Empire’s place. Times were changing but the Factory Inspectorate and British Factory Law were models that many Commonwealth countries decided to adopt.
The Inspectorate had been transferred temporarily from the Home Office to the Ministry of Labour under Ernest Bevin in 1940. After the war the logic of keeping health and safety law alongside responsibility for employment law led to the move being made permanent in 1946. Labour (or Employment) Ministries under various titles would become the Inspectorate’s alma mater for the next seventy years, punctuated only by a brief sojourn in the Department for Environment, Transport and the Regions during the 1990s.
The 1940s and the Factories Act 1948
Under the post war Labour government, remarkably in spite of the country’s severe economic difficulties, safety and health at work continued to be given some political priority. Normal regulatory service was resumed soon after the war. 1946 saw special regulations made for patent fuel manufacture and magnesium grinding. In 1947 controls were improved over health hazards in the pottery industry.
Judges continued to interpret and explain the meaning of Factory Law in civil actions for compensation following accidents. For example, the issue of whether danger should be ‘reasonably foreseeable’ was much debated in court. In 1945 the Lord Justice-Clerk, Lord Cooper, famously said in the case of Mitchell v North British Rubber Co Ltd that a machine is dangerous if ‘…in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled worker intent upon his task, but also to the careless and inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part’.
The 1937 Act was amended by the Factories Act of 1948 which, amongst other things, required medical examinations of young persons under the age of eighteen not only on first employment but annually, and required certificates of their fitness not only for factory work but for other work such as loading and unloading of ships and work on building sites. At long last, regulations were introduced for safety, health and welfare at building operations. 1948 also saw new regulations for clay works and jute manufacture. Dry cleaning and blasting of castings processes were covered in 1949.
Perhaps more significantly in terms of the general health and welfare of the nation than detailed changes to Factory Law, most of the recommendations of the Beveridge Report of 1942 were adopted by the post-war Labour Government with the support of all political parties. The National Insurance Act, National Assistance Act and National Health Service Act, all of 1948, heralded the launching of the Welfare State and National Health Service and a new era of state provision for the needy, to be paid for by National Insurance contributions.. While these provisions did not entirely replace the system that had previously existed, based on friendly societies, trade unions and private insurance, they were giant steps forward. The ghosts of the Poor Laws and Victorian workhouses had finally been laid to rest.
ILO Convention 81
In 1949 the United Kingdom ratified ILO Labour Inspection Convention 81 (1947) which it had helped the International Labour Office develop. The Convention came into effect in 1950 and laid down clear principles for inspection of conditions at work, including safety, health and welfare, and the appointment of labour inspectors by the state and their powers as ‘public officials’.
Article 3 of the Convention stated that the functions of a system of labour inspection should be:
(a) to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours, wages, safety, health and welfare, the employment of children and young persons, and other connected matters, in so far as such provisions are enforceable by labour inspectors;
(b) to supply technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions;
(c) to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions.
The 1950s and the Factories Act, 1959
The Festival of Britain in 1951 was a hopeful indication of the nation’s gradual recovery from post-war austerity, a recovery which allowed further additions to be made to what had already become a considerable body of detailed, prescriptive Factory Law. Regulations were made for potteries, foundries and grinding of metals and cutlery in 1950; testing of aircraft engines was added in 1952, iron and steel foundries (again) were covered in 1953.
Evidence that there were still concerns about health and safety in the textile industry can be found in the making of cotton shuttle regulations in 1952 and mule spinning regulations in 1953. Training of young persons at certain classes of machinery deemed dangerous was addressed in 1954, the year that post-war food rationing ceased; precautions against the hazards of India rubber manufacture were required in 1955; work in compressed air and work in poultry preparation were covered by regulations in 1958.
Yet another Factories Act was passed in 1959. This improved provisions for precautions against fires, prompted in no small part by a disastrous fire in 1956 at a Keighley mill. During installation of new washing facilities with running hot water on the ground floor, a plumber’s blow lamp had ignited waste material. There was no fire alarm and fire escapes were inadequate for a multi-storey building. As fire raced upwards, consuming the old mill’s oil-soaked timbers, six women and two men died.
A prosecution followed for failure to provide a fire alarm but the company was treated leniently by local magistrates, on the grounds that it had been attempting to improve its workers’ welfare. A fine of £15 was handed down.
The Times of May 19th 1956 reported Robert Carr, Parliamentary Secretary at the Ministry of Labour, as telling the House of Commons that ‘Ministry inspectors in Yorkshire were making a special drive on fire risks in the mills in the area. The firm involved in this fire had been successfully prosecuted and fined. If the failure of this firm to carry out its duty was reprehensible, it must also be admitted that the follow-up procedure of the Factory inspectorate had not worked as it should have done in this case. The absence of a fire alarm had first been raised by the inspectors in 1951 and had not been pursued in five visits since that date.’
Between 50 and 75% of factories were estimated to have no fire warning system in spite of this having been required for some years, and before the 1959 Act there was no legal requirement for fire drills to be regularly practised. Fire precautions now became a top national priority for the Inspectorate, responsible for enforcing fire precautions in factories until the Fire Precautions Act 1971 repealed relevant sections of the Factories Act 1961 and transferred certain responsibilities to local fire authorities. However, the Inspectorate retained responsibility for fire precautions in certain high hazard premises, such as petro-chemical works.
But dissatisfaction with the regulatory regime, its by now overly-prescriptive approach and its fragmented arrangements would lead to growing pressure for radical change.
Chapter 10: The system’s limitations exposed
The Factories Act of 1961 consolidated the contents of the Acts of 1937, 1948 and 1959 but introduced no significant new changes in the law. It seemed an admission that the movement that had so successfully built on past achievements had now run out of steam. The 1961 Act was the last in the long series that had originated in 1802. Remarkably, Section One still required periodic lime-washing of workshops (unless they were painted) to keep them clean and healthy, and parts of the Act remain on the statute book even to this day.
In 1963 the Offices, Shops and Railway Premises Act introduced broadly similar requirements for the protection of workers in eponymous establishments.
But the worsening trend in injuries seemed to defy regulation. In his Annual Report for 1961, the Chief Inspector drew attention to the rising numbers of accidents, pointing out that most of the increase was attributable to higher levels of activity in the building and civil engineering industries, and that the main causes of accidents showed little significant change.
New regulations made that year included the Construction (General Provisions) Regulations and Construction (Lifting Operations) Regulations, the latter following a public inquiry. The Chief Inspector commented that these regulations would for the first time provide comprehensive safety requirements for civil engineering work. At the time it seemed a significant step forward. However, as yet there were no specialist teams of construction Inspectors. Instead, Factory Inspectors were expected to spend at least one day per month on building sites found in their district. Separate groups dedicated to construction were introduced later in the decade (see Chapter 19).
Occupational health also received attention. The Inspectorate set up an Industrial Hygiene Unit in 1966 to enable testing and monitoring of dust and fumes in the working environment. Concerns about the industrial use of known carcinogenic substances such as B-napthylamine and benzidine led to their being banned under Carcinogenic Substances Regulations in 1967. A subcommittee of the Industrial Health Advisory Committee developed a Code of Practice for reducing workers’ exposure to harmful levels of noise. Difficult in practice to enforce, the Code of Practice was published in 1971, a fore-runner to regulations that would be made nearly twenty years later.
Inspection and enforcement practices in the 1960s
There was still strong political support for the Inspectorate’s work. The 1961 Report records the Secretary of State’s agreement to the Chief Inspector’s request for an increase in complement, adding thirty four Inspectors and sixty clerical staff. This resulted in a twenty-five per cent increase over the 1956 cadre of Inspectors and included an increase in the Specialist branches from a total of fifty Inspectors in 1956 to eighty-two.
By the end of 1961 the Inspectorate had 426 inspectors in post, including specialists at headquarters, with the majority working in 13 divisions spread over England, Scotland and Wales. Divisions were headed by a Superintending Inspector and generally contained six or seven small teams, each led by a District Inspector, working from 100 or more local district offices.
In those days Inspectors were expected to come into a chilly office on Saturday mornings, which were often spent writing up their reports or exchanging experiences with colleagues in front of a coal fire. When inspecting they worked mainly on their own unless a colleague needed to be present as a witness in the taking of evidence. The inspection programme laid down by the Chief Inspector required every factory to be inspected on a four yearly cycle, regardless of whether risks were high or low. Larger factories were usually divided into units that could be inspected in half a day. The Chief Inspector’s Instructions emphasised the importance of surprise and visits were normally unannounced. Inspectors’ abiding approach was to ‘be fair, be firm, be friendly’. Before leaving the premises the inspector would ask to see a director and, if there were a trade union, the convenor of shop stewards to make observations and discuss any improvements that might be needed.
Cases of obstruction were uncommon. Inspectors could require a police constable to accompany them if any trouble was expected but very rarely needed to exercise this power. However on one occasion an employer who seriously assaulted an Inspector was convicted and jailed for causing grievous bodily harm.
Night and evening visits were regularly paid for inspection of shift work and enforcement of restrictions on the hours of employment of women and children. The District Inspector was empowered to issue an Evening Employment Order to permit the late employment of women, but they should not be employed at night. Complaints by workers were treated as anonymous and, together with reports of accidents causing fatal or serious injuries, were always given priority.
Inspectors were instructed by the Chief Inspector to prepare a prosecution report when they discovered egregious offences during an inspection, such as a locked fire exit or when investigation showed that a serious injury had been caused by failure to fence dangerous parts of machinery. Inspectors were trained to gather evidence at the factory of any serious breaches of law and their evidence-gathering powers included taking statements from workers, samples, photographs and seizing defective equipment. District offices were cluttered with cracked shackles and frayed wire rope slings awaiting legal proceedings. Although in those days Inspectors had no powers under the law to prohibit activities or require improvement except by court order, any letters written to occupiers after inspections could be produced as evidence of previous advice or foreseeability.
After approval by a senior officer, the Inspector would lay relevant ‘informations’ before the Magistrates, obtain and serve summonses and conduct the case for the prosecution in the Petty Sessional Court, often against a defending barrister. In Scotland, Inspectors would assist the Procurator Fiscal who had responsibility for prosecutions in the Sheriffs Courts.
Prosecution was time consuming work but was the only sanction available, short of obtaining a court order if dangerous conditions warranted drastic urgent action, such as closure. Inspectors’ considerable powers of persuasion were often sufficient to achieve a remedy in such cases, whereas the procedure for obtaining a court order was slow and cumbersome. About 50 applications for orders were usually made each year.
By the end of the 1960s, by when the Inspectorate had grown to around 500 staff, on average some 2,400 informations were laid before the courts every year by Inspectors. Although the Factories Act was part of criminal law it was rare in those days for the courts to hand down severe penalties for health and safety offences. Indeed, in country districts it was not uncommon for crimes such as poaching to attract higher penalties. However, the Inspectorate regarded enforcement of Factory Law as an important part of their duties. Inspectors would also attend inquests into deaths at work, where their role was to assist the Coroner in establishing the cause.
The work of an Inspector required considerable mastery of technical and legal matters, quite apart from the skills needed in dealing effectively with people from all walks of life. Providing new recruits with the training appropriate to their duties was to become increasingly important.
Training and qualification of Inspectors
Entry to the Factory Inspectorate was at graduate level, followed by assignment to a District for a probationary period, during which ‘on the job’ training would be received from experienced Inspectors and at specialised courses run at the Industrial Health and Safety Centre in Horseferry Road. Tutorials for trainees would be held at Divisional offices by a senior Inspector. They were expected to become familiar with the detailed contents of the Inspectorate’s ‘Bible’, Redgrave’s Factories Acts, and after two years’ service to pass a rigorous technical and legal examination when, if successful, their probation would end. They were not allowed to take Redgrave into the examination room. During their first two years they were also expected to contribute to the district’s inspection programme, usually inspecting on their own, and to conduct investigations and prosecutions.
Later, it became clear that in-service training for experienced Inspectors was also vital, not only for ensuring that their technical knowledge was keeping abreast of the times but also to help their career and professional development and provide the Inspectorate with the senior managers of the future. Some Inspectors voluntarily chose to read for the Bar and some were sent on a Masters course at Imperial College or a Diploma course at Aston University. Later still, in the early 21st Century Inspectors would be required to achieve a postgraduate Diploma in Regulatory Occupational Health and Safety at the University of Warwick.
The regulatory system’s limitations exposed
In the 1960s there were several savage reminders of the lurking potential for industrial disasters. This was by no means confined to industries regulated by the Factory Inspectorate. In 1966 an unstable colliery waste tip slid down a Welsh mountainside at Aberfan, engulfing the village school and killing 148 people, most of whom were children. The disaster exposed a serious regulatory gap: waste tips were not covered by the Mines and Quarries Act 1954 which applied at the time. After the inevitable public inquiry the Mines and Quarries (Tips) Act was passed, requiring regular inspection and maintenance of any tips associated with mines and quarries. The Mines Inspectorate began recruiting civil engineering surveyors to help determine how well the National Coal Board was complying with its new duties.
When a crane collapsed onto a bus killing members of the public at Brent Cross, North London in 1964, another gap in the law had been exposed. Some politicians began to demand that the public should be better protected from risks from industrial activities which exposed them to danger.
Other risks were emerging, some from the introduction of new materials. In 1968 a fatal fire which killed 22 workers at an upholstery factory in Glasgow drew the Factory Inspectorate’s attention to serious fire and gassing risks arising from hazardous storage and use of foamed plastic. Research was initiated to find out more about its flammability and toxicity and how to control those risks.
In 1969 the London Fire Brigade attended a fire in a storage vessel at a tank farm at Dudgeon’s Wharf, where demolition was in progress. In an attempt to burn off the bolts of a manhole cover to check that the fire had been extinguished, the heat from the oxy-acetylene torch caused the tank to explode, killing five fire-fighters. A public inquiry into the disaster exposed an absence of risk assessment, a theme which would often be repeated in the years to come.
It was becoming increasingly obvious that the narrow, prescriptive approach of Factory Law and the limited powers of Factory Inspectors were no longer sufficient for the effective regulation of modern industry. For example, a number of cases of lead poisoning and lead absorption had been identified by medical examinations of workers at a new smelting plant in Avonmouth shortly after production started in 1968, heralded by the Prime Minister Harold Wilson as introducing a new technological revolution. In 1969 the firm agreed to shut down the plant for a short time to make improvements and environmental tests were carried out by the Factory Inspectorate’s recently established specialist Industrial Hygiene Unit. Specific recommendations for improvements were then made.
Reiterations of inspections of the plant followed by letters continued until September 1971 when, because earlier improvements had not been maintained, the company was requested to extend their next planned shutdown in order to make further modifications and improvements. In early 1972 a committee of inquiry into the conditions was set up, led by Sir Bryan Windeyer, who also made recommendations. A ‘watchdog committee’ was then established at the plant to keep workers informed and involved with management in reducing lead exposures. Little of this was actually enforceable but the Chief Inspector of Factories, Bryan Harvey made it clear to the company’s Chairman that if things did not get better the Inspectorate’s approach would have to become ‘more abrasive’. Fortunately, conditions at the plant did improve.
As industrial technology advanced in the early 1970s, so the work and working methods of the Factory Inspectorate began to change. For example, effective enforcement of standards for dust or fumes in workplace atmospheres was still difficult but whereas the possession of a good sense of smell had once been a prerequisite for anyone hoping to join the Inspectorate (and was tested at the medical examination), instruments for the measurement of dust, fume and noise were now being purchased and issued to districts for use by a trained nominated inspector. Dedicated construction teams were established in every division, supported by civil engineering specialist inspectors, and all inspectors were beginning to need more specialised training to keep up with the rapid advances in industrial technology that were taking place.
In his annual report for 1970 Harvey described the Inspectorate as a ‘watchdog with a nose for trouble, a loud bark and sharp teeth’. In 1971 he presciently drew attention to the growth in size of inventories of hazardous materials stored and processed on sites in the chemical process industry. In 1972 he called for chemical companies to notify local planning authorities so that they could consider potential effects on other developments in the area.
Regrettably this did not prevent the 1974 Flixborough disaster but the incident prompted the swift establishment of a Major Hazards Branch, a Risk Assessment Group and a Major Industrial Hazards Advisory Committee. Meanwhile the Chief Inspector had introduced a system of priority inspections of major hazard premises, over-riding the conventional four-yearly cyclical pattern of planned inspections and encouraging Inspectors to spend as much time as was necessary to improve controls at these sites.
Chapter 11: A great leap forward: the Act of 1974
Chief Inspectors’ annual reports throughout the 1960s had frequently drawn attention to concerns over rising fatal and major injury rates. Political support slowly grew for stemming the tide by another revision of Factory Law. In 1970, as the USA passed its Occupational Safety and Health Act and created a new federal agency (OSHA) to enforce it, Barbara Castle, the Labour Government’s Secretary of State for Employment and Productivity, placed an Employed Persons (Health and Safety) Bill before Parliament.
The Robens Report, 1972
The Bill was debated by MPs but dropped when a Conservative Government was returned in the General Election of 1970. Its failure was not from a belief that nothing needed to be done. Ministers felt that the Bill did not go far enough and was unlikely to improve matters. Instead, they decided to invite Lord Robens, the Chairman of the National Coal Board who had experienced the tragic Aberfan tip disaster, to carry out a fundamental review. A Committee on Safety and Health at Work was formed and took evidence over the next two years, reporting in July 1972. Their findings became known as ‘the Robens Report’.
Believing that the primary responsibilities lay with those who created risks and those who worked with them, Lord Robens’ Committee concluded that a more self-regulating system of provision for safety and health at work was needed and that the traditional approach based on ever-increasing, detailed and prescriptive statutory regulation was outdated, over-complex and inadequate. Reform should be aimed at creating the conditions for more effective self-regulation by employers and workpeople jointly. The efforts of industry and commerce to tackle their own safety and health problems should be encouraged, supported and supplemented by up to date provisions unified within a single, comprehensive framework of legislation. Much greater use should be made of agreed voluntary standards and codes of practice to promote progressively better conditions.
Robens recommended that the statutory arrangements should be reformed with all of this in mind. He believed that a broader and more flexible framework would enable statutory inspection services to be used more constructively in advising and assisting employers and workers. At the same time, it would enable their resources to be concentrated more effectively on serious problems where tighter monitoring and control might be needed. He recommended that a National Authority for Safety and Health at Work should be established to replace Whitehall’s existing fragmented administrative arrangements and bring together the several Inspectorates scattered between Departments.
Robens’ recommendations were welcomed and attempts were made to find Parliamentary time for a Bill to implement them. In spite of strong cross-party support this was not plain sailing. A Bill was eventually introduced by the Conservatives in January 1974 but was lost when an election was called in February. Returned to power, Labour reintroduced the Bill and much credit is due to Harold Walker MP, the Minister entrusted with steering it safely through its Parliamentary stages, for securing the passage of the Health and Safety at Work etc. Act in July of that year.
The need for radical change had been underscored a month earlier by the Flixborough disaster which killed twenty eight men. As if any further reminder were needed, it came a year later at the Appleby Frodingham steelworks in a molten metal explosion which killed eleven.
The Health and Safety at Work, etc. Act, 1974
Coming some 140 years after the Factory Act of 1833, the Robens Report was a genuine watershed, enabling the modernising Act of 1974 to introduce a fundamentally different, less prescriptive regulatory system based on general goal-setting duties in a framework supported by regulations, codes of practice and guidance, all developed in an open, consultative process with stakeholders whereby employers and employees could become co-operatively engaged in self-regulation.
As well as for the first time bringing factory, mining, nuclear and other safety and health legislation together as “relevant statutory provisions”, the new Act extended protection well beyond traditional industrial occupations to another 8 million people working in local government, hospitals, education and a host of other services (twenty years later these were still being called the ‘new entrants’).
Significantly, whereas the phrase ‘safety, health and welfare’ had hitherto been in common use for decades, even the new Act’s title was a careful attempt to ring the changes by instead using the phrase ‘health and safety at work’.
General duties and regulations
Described as ‘a bold and far-reaching piece of legislation’ by John Locke, its architect, the Act imposed general duties to ensure health and safety ‘so far as is reasonably practicable’ not only on employers but also on the self-employed, designers, manufacturers and suppliers of equipment and materials. For the first time, the safety of the public was to be protected when put at risk by ‘the conduct of an undertaking’. This was indeed a great leap forward from the old Factory Law.
Approved Codes of Practice
The introduction of approved codes of practice (‘ACoPs’) was also novel. As the post-1974 regulatory framework developed, these codes usually explained in some detail how employers were to comply with statutory requirements. The making of new regulations was usually accompanied by an approved code and, in addition, a guidance note. The three elements thus formed a complete ‘package’ for the relevant topic. As with the making of regulations, often lengthy consultations would be necessary with employers and employees representatives and other interested parties before approval of an ACoP by the Commission and agreement by the Minister. The process was not quite as swift and flexible as the Robens Committee had wished but it did enable the regulatory system to keep pace with advances in technology and practice. Over time a considerable number of codes of practice were approved. These would later attract the attention of deregulatory reviews in 1994 and 2011 but remained a useful plank in the regulatory framework.
Once approved, a code of practice acquired a special status in law. If an employer were prosecuted for a breach of health and safety law and it were shown that the provisions of a relevant Approved Code of Practice had not been followed, the court would be expected to find the employer in breach unless it were demonstrated that compliance had been achieved in another, equally effective way.
The Act required the new regulator to provide an information and advisory service. Much advice already existed in the form of publications produced by the various Inspectorates. Many of these were free, some were for sale. Unlike approved codes of practice, guidance had no legal status (and generally included a disclaimer to that effect) but if Inspectors found the relevant guidance being followed by an employer they would generally regard that as sufficient to demonstrate compliance with a statutory duty.
Relevant statutory provisions
The new framework did not sweep away the old at a single stroke. It would take many years to reform the system and incorporate the numerous existing Acts and subordinate legislation, such as the Factories Act 1961, the Explosives Act 1875 or the Mines and Quarries Act 1954 and any regulations made under those Acts. As ‘relevant statutory provisions’ they remained enforceable under the 1974 Act until replaced.
New statutory bodies
Under successive Labour governments during the 1970s, several ‘tripartite’ organisations or agencies had been created to perform, at arm’s length from Ministers, some of the functions of government in the areas of economics, industrial policy and labour relations. These Quasi Autonomous National Government Organisations (‘Quangos’), such as the National Economic Development and its offshoots, the Manpower Services Commission, and the Advisory, Conciliation and Arbitration Service, were usually comprised of representatives of employers, trade unions and government. They were now joined by not one but two new children of what by now had been dubbed ‘the Corporate State’ by political commentators.
The Health and Safety Commission and the Health and Safety Executive were not exactly the single national authority that Lord Robens had recommended. John Locke, a Deputy Secretary in the Employment department charged with implementation of the recommendations, secured a significant change by deliberately creating two separate bodies, each with their own statutory functions and responsibilities.
The Health and Safety Commission
The Act formally established a Health and Safety Commission (HSC) on 1 October 1974, ostensibly for the purposes of reforming the existing system of regulations, proposing new regulations and codes of practice, providing information and advice and conducting research. Its first chairman was Bill (later Sir Bill) Simpson, a former general secretary of the Foundry Workers trade union.
The Chairman and members of the Commission, including those nominated by employer organisations and trade unions, were formally appointed by the Secretary of State for Employment, to whom they were accountable. Two local government members were appointed in recognition of the major part that Local Authorities were to play in the new regulatory system. The Commission’s principal function was formally to advise Ministers about policy. Meetings were held fortnightly, when they considered proposals by the Executive. In practice, performance of most of its statutory functions such as the provision of information or commissioning of research was delegated to the Executive.
HSC published its first report in 1977 (for the years 1974-76), describing its work as
‘…taking appropriate steps to secure the health, safety and welfare of people at work, to protect the public generally against risks to health and safety arising out of the work situation, to give general direction to the Health and Safety Executive and guidance to Local Authorities on the enforcement of the Act, to assist and encourage persons with duties under the Act and to make suitable arrangements for research and the provision of information’.
The report referred to codes of practice for vinyl chloride monomer and lead, and work in progress on dust, asbestos, fire precautions, a tanker marker scheme, safeguarding of machinery, major hazards and the implications of the Flixborough disaster.
Setting the boundaries
The scope of the new Act was so broad, partly because Section 3 covered public safety issues, that there was potential for overlap with legislation administered by other statutory bodies, such as for aviation or consumer safety. It soon became clear that it was important to delineate the boundaries of the Commission’s interests. In 1978 the Secretary of State for Employment, Michael Foot MP, was prompted to write a letter to the Chairman of the Commission clarifying its role and responsibilities in some detail, directing it not to become involved with areas such as consumer safety and protection, aviation or the fishing industry which were already regulated by others. (This instruction became known colloquially as ‘the Foot Letter’.)
In time it would become necessary to enter into memoranda of understanding with other authorities to define respective responsibilities, establish mutual understanding of who did what and ensure effective collaboration, as and when required by events. While the Commission was primarily accountable to the Secretary of State for Employment, the wide scope of the legislation for which the Commission was now responsible entailed the need to be ready to give policy advice to several other Secretaries of State, for example in respect of nuclear safety and mining for which the Secretary of State for Energy was responsible to Parliament.
The Health and Safety Executive
A Health and Safety Executive (HSE) formally came into existence on 1 January 1975, three months after the Health and Safety Commission. The Executive was established as a separate legal entity, headed by a ‘trinity’ of a Director General (appointed by the Secretary of State), a Deputy Director General and another senior official (each appointed by the Commission with ministerial approval).
Its roles were both to help the Commission discharge its responsibilities (as set out in Sections 1, 10 and 11 of the Act) and, under Section 18, to fulfil its own statutory duty, which was to make ‘adequate arrangements for enforcement’ of the legislation (except where enforced by Local Authorities). The Executive managed the budget and was the legal employer of a force of civil servants that would soon exceed 4000 staff gathered together from various Departments. The Executive’s policy divisions supported the Commission in its role of policy adviser to Ministers by conducting any necessary consultations and working up proposals for the Commission’s consideration. Senior staff took day to day regulatory decisions and liaised regularly with officials of the several Departments whose Ministers were responsible to Parliament for aspects of their regulatory work.
The Westminster Parliament had passed the Act with strong cross-party political support but Whitehall mandarins faced with losing staff and influence to the new regulator were less enthusiastic. John Locke, a Deputy Secretary in Employment Department, had been made the Executive’s first Director General, with Bryan Harvey, previously a distinguished Chief Inspector of Factories, as his Deputy. Locke was a clever and determined senior civil servant with a reputation for ruthlessness; inevitably he made enemies in Whitehall as he wore down Departmental opposition and drew the Executive’s resources together.
As well as the staff of HM Factory Inspectorate, the staff of a number of other regulatory organisations were transferred to HSE in 1975, including the Explosives Inspectorate (from the Home Office), the Employment Medical Advisory Service (with its doctors and occupational nurses returning from the Department of Employment), the Nuclear Installations Inspectorate and the Mines and Quarries Inspectorate (from the Department of Energy), the Safety in Mines Research Establishment, the British Approvals Service for Electrical Equipment in Flammable Atmospheres (BASEEFA) and the Alkali and Clean Air Inspectorate (from the Department of the Environment.)
Well before the Second World War the Factory Inspectorate had found it helpful to engage with representatives of employers and trade unions in joint industrial advisory committees, some known as National Joint Industrial Councils. This practice proved to be a valuable form of consultation during the development of standards for industries where there were serious safety and health hazards and technical difficulties in controlling risks, such as in foundries or paper manufacturing. Their work was a major contribution to finding practical and affordable solutions to problems such as how to guard in-running nips at two-roll mills in the rubber industry or fence power presses safely. Their recommendations carried weight with industry and gained the confidence of workers, often setting standards unspecified in law but acknowledged to represent good practice.
As well as for manufacturing sectors, some committees were set up for the examination of generic issues, such as industrial health. A perhaps forgotten example was the Joint Advisory Committee on Accident Prevention, whose notable 1956 report charted a path that would lead to the Factory Inspectorate establishing an Accident Prevention Advisory Unit (APAU). The work of APAU enabled the Inspectorate to publish best-selling guidance such as ‘Success and Failure in Accident Prevention’ in the 1970s and ‘Successful Health and Safety Management’ (HSG 65, 1991). These were the first official attempts to explain how health and safety at work could be managed as an integral element of sound business management, contributing positively to company performance. The principles and approaches they explained were derived from studying high performing companies and were echoed in subsequent British and ISO standards.
The tripartite Commission found it sensible to continue this tradition of collaboration and co-operation, establishing a wide range of advisory committees over the next three decades. Following the Flixborough disaster, the Advisory Committee on Major Hazards was one of the first. A number of others were set up to assist in advising the Commission on evidence-based policies for control of risks. Usually tripartite in composition, with expert membership, some of these committees had origins in their pre-1975 precursors but others were entirely new, such as the Advisory Committee on Dangerous Pathogens on which the Department of Health was represented. These committees lent considerable weight to the Commission’s policy proposals to ministers.
In its early years the Commission had to grapple with a number of contentious proposals for new regulations, such as for asbestos, construction, dusts, genetic manipulation, ionising radiations and lead. Later, it had difficulty reaching agreement over how to tackle issues such as asthma or noise, or HSE’s controversial proposals for the control of substances hazardous to health. But the Commission took pride in being able to reach agreement between employers and trade unions on difficult issues without the Chairman ever having to force a vote. Sometimes the Local Authority Commissioners would play an important mediating role in discussions, for example during lengthy debates over an approved code of practice for control of the carcinogenic risk to workers from vinyl chloride monomer.
Safety representatives and safety committees
Difficult issues were often remitted to the Executive to resolve by consultation and bilateral negotiations with interested parties. A particularly challenging early task for the Commission was to secure agreement from employers and trade unions on how to implement a key Robens’ recommendation, the introduction of safety representatives and safety committees. After long and difficult negotiations, brokered by the Executive, the Safety Representatives and Safety Committee Regulations 1977 came into effect on 1 October 1978, backed up by an Approved Code of Practice (ACoP).
Safety representatives and committees were destined to become an important element of the new health and safety system. The regulations gave recognised trade unions the right to appoint safety representatives from employees that they represented (except in coal mines, where other arrangements existed under the Mines and Quarries Act 1954). Safety representatives were empowered to investigate potential hazards and dangerous occurrences at the workplace and to examine the causes of accidents, make representations to employers on matters affecting the health, safety or welfare of the employees, and to inspect certain documents. Two or more safety representatives could request their employer to establish a safety committee, which in turn enjoyed certain rights. Many employers soon came to recognise the value of involving their employees more closely.
Information and advisory services
One of the Commission’s statutory functions was to provide information and advice. This was delegated to the Executive who established a Directorate of Information and Advisory Services (DIAS) with sections including a press office, exhibitions and publicity, and publishing. HSE also established a significant archive of publications and maintained a comprehensive library of national and international health and safety information at its Sheffield Laboratory site, under the expert leadership of Sheila Pantry OBE, its Chief Librarian.
The Sheffield Library was held in the highest esteem at home and abroad until its closure in 2004, when a new Laboratory was built in Buxton and the Sheffield site was closed. By then HSE was using web based systems to provide the statutory information and advisory service.
The 1974 Act contained new powers of enforcement. Rather than Inspectors having to rely in the last resort on the blunt-edged swords of prosecution or court order, Robens expected their weapon of choice to become the power to serve an improvement or prohibition notice where, in the Inspector’s opinion, this was justifiable and necessary for health and safety. The new powers, together with procedures for appeals to be heard by Industrial Tribunals, came into effect on 1 April 1975.
The Executive was responsible for formally appointing Inspectors under the Act. An early challenge to the legitimacy of Inspectors’ actions after 1975 came in the form of a successfully defended prosecution, on the grounds that Inspectors’ warrants were invalid. The matter was swiftly rectified by their reissue, much to the irritation of the Director General who had to sign each one.
During the next three decades around 10,000 notices, of which about 1,000 were prohibitions, were issued every year by HSE’s Inspectors (and a smaller number by Local Authorities). It is a tribute to Inspectors’ professional judgment in exercising their powers that appeals against their notices were rare and usually unsuccessful.
Inspectors continued to prosecute in the Magistrates Courts but more serious offences attracting higher penalties could now be tried in the Crown Courts before a Judge and jury, where only barristers would prosecute or defend cases. Inspectors were careful to comply with procedures for taking evidence from witnesses as laid down by the Police and Criminal Evidence Act 1984 (PACE). After the establishment of the Crown Prosecution Service in 1986, the Director of Public Prosecutions became responsible for health and safety prosecutions in the higher Courts in England and Wales and would apply evidential and public interest tests to proposed cases before agreeing to proceed. In Scotland the Procurator Fiscal would continue to prosecute cases in the Sheriffs’ Courts, assisted by Inspectors.
As already mentioned, it was the Health and Safety Executive, not the Commission that was responsible under Section 18 of the Act for making ‘adequate arrangements for enforcement’. The tasks of inspection and enforcement were shared between its own Inspectors and the staff of some 460 Local Authorities, who were also ‘enforcement authorities’ under the Act. The Executive and Local Authorities set up a joint forum (known as ‘HELA’) to share information and experience and monitor performance.
The Commission was not allowed by law to interfere in individual cases but it set out in an Enforcement Policy Statement certain principles of proportionality, consistency, targeting, transparency and accountability that it expected enforcement authorities to follow. In practice the Commission had little power over individual Local Authorities’ performance, which tended to vary depending on size and resources, but where necessary HSE’s Local Authority Unit would engage with Chief Environmental Health Officers in attempts to encourage enforcement activity and greater consistency.
The Enforcement Policy Statement was later revised in accordance with principles laid down by the Legislative and Regulatory Reform Act 2006 and the Government’s Regulators’ Compliance Code of 2008. It was replaced by HSE in 2013 by a ‘National Local Authority Enforcement Code – Health and Safety at Work, England, Scotland and Wales’ (see Chapter 22).
Chapter 12: Managing change
The Factory Inspectorate, numerically by far the largest Inspectorate and a long established part of the Employment Department’s family, perhaps stood to benefit most from the radical changes promised by the new arrangements. It is only fair to say that none of the other Inspectorates welcomed their transfer to the new regulatory body unreservedly. A few senior individuals remained resentful, perceived an imagined loss of status, hoped for a return to the status quo, and possibly even plotted to try and achieve it.
In the beginning the several Inspectorates remained organisationally separate, proudly independent, and inclined to look back to what some saw as a more illustrious past. At first, still based on the District system inherited from the Victorian era, it seemed to Factory Inspectors working in small teams under a District Inspector that little had been altered by the formation of a mysterious Executive based in a distant London headquarters. However, this would soon change.
Reorganisation of the Factory Inspectorate
Locke was determined to reform the Factory Inspectorate and he swiftly initiated a review of its organisation and working methods led by Mollie Barger, Head of a new Planning Branch. After the inevitable bickering over its recommendations, things settled down under the dynamic leadership of a new Chief Inspector of Factories, Jim Hammer, who served from 1975 until 1984, when he became Deputy Director General. Reflecting on the Inspectorate’s ability to adapt to change and yet to preserve the qualities that gave it authority, in his first annual report (for 1974) he said ‘what has not changed are the qualities needed to carry through this work: knowledge allied to professionalism; determination touched with flexibility; enthusiasm tempered by realism; and the whole characterised by a robust independence’.
In 1977 the Inspectorate’s 100 or more local District offices were closed and a new field organisation emerged, based on 21 Areas and 11 satellite local offices staffed by Factory Inspectors, who were supported by 7 Field Consultant Groups staffed by specialist engineers and scientists.
Each Area housed several teams (Groups), each dedicated to inspection of a particular industrial sector according to the local distribution of industry, together with a National Interest Group (NIG). This was expected to become the fount of the Inspectorate’s professional knowledge for a particular industrial sector, nationwide. The Accident Prevention Advisory Unit (APAU) based at Preston continued to carry out research into safety management and published case studies illustrating best practice.
It was clear that inspection methods needed to change, now that the 1974 Act had introduced general duties for employers to ensure health and safety. Examining a company’s systems for managing risks to health and safety in depth was now considered more appropriate than the approach traditionally followed by the Factory Inspectorate. Sometimes described as ‘ocular inspection’, this had been based on comprehensive inspection of workplaces for hazards which were then reported in detail to company management by letter. Firms were now expected to perform this task themselves with whatever expert assistance they needed to obtain. The new Act required firms with five or more employees to have a written policy describing how they ensured their health and safety and Inspectors would test this against the conditions they found.
For inspection of the larger, more complex businesses, particularly those with multiple sites, multidisciplinary teams of inspectors could now be swiftly assembled as required from an Area’s larger pool of resources, supported as necessary by specialists from the Field Consultant Group. This flexibility proved invaluable whenever an urgent need arose to form a suitable team for a major investigation.
A risk-based inspection rating system
In 1977 the Inspectorate introduced a numerical rating system to enable prioritisation of its inspections of companies, according to how Inspectors rated risks to workers’ health and safety, public safety and the competence of management in risk control, based on what was found at the last inspection. This allowed programmes of inspection to be planned annually by each group, with the aim of giving businesses that had been given higher ratings closer attention than those assessed as lower risk. Improvements (or the reverse) were reflected in reassessment of ratings after each inspection. Results were recorded on computer, enabling the Inspectorate’s workload to be properly quantified and accurately planned for the first time and providing justification for the size of Inspectorate that was needed to fulfil its ever-widening tasks.
At the same time, the Inspectorate maintained a proportion of lower risk premises in its planned programme by including a factor for time elapsed since last inspection, thus ensuring a chance of detecting deteriorating performance that could lead to higher risks. Reacting to complaints and accidents by investigation continued to be given high priority.
Compared with the traditional, undiscriminating four yearly inspection cycle, the rating system was soon widely recognised as providing a successful means of directing limited resources for inspection towards businesses with higher risks or poor compliance records. The system was shared with Inspectorates in several European member states and other countries through the good offices of the Senior labour Inspectors’ Committee of the European Union and the International Association of Labour Inspection.
Corporate management in HSE
These changes in organisational structure and working methods proved very successful in improving the effectiveness of the Factory Inspectorate. Meanwhile the Executive’s other, smaller Inspectorates were allowed to remain separate and retain existing internal organisational arrangements. But their Chief Inspectors were expected to participate in the overall running of the parent body by working with the three members of the Executive in a corporate Management Board and other corporate fora, such as for managing the introduction of information technology and systems across the wider organisation, and research.
A small team of lawyers was formed to provide the legal advice required for drafting regulations and supporting prosecutions. An Information and Advisory Service was set up to help the Commission discharge its duty to provide information and advice to employers and any others who might need it. A Press Office was established in London to help deal with media interest and promote publicity for campaigns, and a Library was established at Sheffield which would soon become an internationally respected institution in its own right. A well balanced organisation of administrators, inspectors and specialists was beginning to emerge with the necessary capacity and range of skills needed to fulfil its statutory responsibilities.
The final piece of Locke’s original plan fell into place in 1977 with the transfer of the Ministry of Agriculture’s safety, health and welfare inspectors to the HSE. The Executive continued to make determined efforts to create a unified, properly integrated organisation which could share and exploit the technical strengths of all the Inspectorates to the general benefit of the health and safety system. Attempts by Locke to unify the diverse pay and grading system by job evaluation and weld the Inspectorates together under the single management of an ‘Inspector General’ failed in 1980. These goals would be achieved a decade later by a younger generation of senior managers who shared stronger allegiance to the Executive.
However, an early existential challenge soon had to be faced by the Commission and Executive.
In 1977 Bills were introduced proposing devolution of certain national government powers and functions from Westminster and Whitehall to Scotland and Wales. Health and safety at work was to be exempted from the proposals but public health was included. Maintaining a clear distinction between the two functions during the Parliamentary process proved difficult and involved urgent amendments to the draft Bills to secure the position as they passed through their Parliamentary stages. Those Bills eventually fell but another attempt at devolution was successful twenty years later. Public health and environmental protection were devolved but health and safety at work was preserved as the responsibility of the United Kingdom Parliament at Westminster.
The Factory Inspectorate had ceased to have responsibility for health and safety in Ireland once the Republic was established. However, strong links existed with the Six Counties that remained part of the United Kingdom. These were the responsibility of a separate Northern Ireland Factory Inspectorate who received any requested training and specialist assistance from HM Factory Inspectorate.
While the Factories Act of 1961 was not applied to Northern Ireland, the Factories Act (Northern Ireland) Act 1965 introduced broadly similar provisions. A separate Health and Safety Agency (HSA) for Northern Ireland was established in 1978 when the provisions of the 1974 Act were extended to the Province under the Health and Safety at Work (Northern Ireland) Order. Regulations similar to those on the mainland have since been introduced in conformity with European Directives.
The Agency was renamed as the Health and Safety Executive for Northern Ireland (HSENI) in 1998. Based in Belfast, its statutory functions are similar to HSE’s. It aims to encourage, regulate and enforce occupational health and safety in ways similar to HSE’s approach to regulating the rest of the United Kingdom. Its Inspectors maintain close professional ties today with their British mainland colleagues and with the Health and Safety Authority (HSA) in the Irish Republic.
The Executive was soon put to another survival test. The General Election of 1979 which followed the so-called ‘Winter of Discontent’ and a plague of strikes and stoppages ushered in a Conservative government with a deregulatory agenda and strong determination to reduce public expenditure. An immediate freeze was put on most civil service recruitment and, aside from some specialists, the Health and Safety Executive’s Inspectors were not exempted. The damaging recruitment ban lasted almost five years and was accompanied by a severe budget cut.
Although it would take at least a decade to recover when recruitment at last resumed, it was not all bad news. Relieved of the task of training annual intakes of new recruits, experienced Inspectors were able to concentrate on inspection and enforcement. Around one million workplace inspections or investigations were carried out in the first ten years of HSE’s existence. The organisation soon learnt the value of multiplying its efforts in reaching out to business and the general public by engaging the media. Publicity was deliberately sought for high profile campaigns, such as construction site ‘blitzes’ conducted under the media’s gaze in an attempt to curb the high fatal accident toll in the construction industry (see Chapter 19).
A split headquarters
The Executive next faced difficulties arising from the Government’s policy for dispersal of some of Whitehall’s executive functions from London to the provinces. Ministers decided that HSE should relocate to Bootle, Merseyside, which naturally aroused resentment and opposition from staff faced with expensively moving their homes and families from London, even sparking threats of a strike by the Nuclear Installations Inspectorate. Notwithstanding this, the relocation of the Inspectorates’ headquarters and HSE’s corporate functions went ahead in 1982, with the Commission, Executive and the policy divisions remaining in London. A split headquarters was not ideal and could have been divisive but was somehow made to work by loyal staff.
Sir Bill Simpson, who once described himself as ‘a shoe leather Chairman’ prepared to go anywhere and meet anyone to promote the health and safety cause, was succeeded in 1983 by Dr (later Sir) John Cullen, a chemical engineer. The first Director General, John Locke CB, retired in 1983 and was succeeded by John Rimington. Jim Hammer succeeded John Dunster as Deputy Director General in 1985 and was followed by David Eves, who served until 2002 both as Chief Inspector and as Deputy Director General.
John Rimington set about mending fences that Locke had forced down in Whitehall when gathering the various Departmental Inspectorates together under the Executive’s wing. Rimington also began advancing an ambitious programme of reform of secondary health and safety legislation (some 500 statutory instruments), an essential task that had been proposed by Robens and entrusted to the Commission by Section 1 of the 1974 Act.
A symbolic step towards organisational integration was the suppression by the Executive of the several Chief Inspectors’ Annual Reports and replacement by a single HSE Report. The last report of HM Chief Inspector of Factories was published for the year 1986-87. ‘One HSE’ became the organisational theme and objective of the new generation of senior managers.
Sensitive to the politics of the time, Rimington skilfully steered the Commission and HSE through a succession of reviews during the ‘80s and early ‘90s. These were usually predicated on the notion that the health and safety regulator was imposing unnecessary burdens on business. Much to Ministers’ surprise, reviewers invariably found that this was not the case. Companies consulted said they were generally happy to comply with health and safety law. They did not object to sensible regulation on which they had been properly consulted, moreover they welcomed the advice they received, free of charge, from Inspectors and they were glad to see HSE taking action against competitors who attempted to evade the law.
However, ‘red tape’ and perceived regulatory ‘burdens on business’ were themes that sceptical Ministers would return to question in another round of reviews after the General Election of 2010.
During the 1980s the Health and Safety Commission briefly trailed in front of its stakeholders an idea it called ‘Safety Assurance’. This was not unlike ‘STAR’ a so-called ‘voluntary protection programme’ that OSHA, the United States’ regulator introduced, whereby companies who could demonstrate an outstanding safety record earned a degree of autonomy, allowing the regulator to concentrate more effort on poor performers. However the Commission’s ‘Safety Assurance’ proposal ran into considerable opposition, particularly from trade unions, and was soon dropped. Self-regulation was proving harder to achieve than Robens had imagined.
Reorganisation of Field Operations
In 1988 Tony Linehan succeeded David Eves as HM Chief Inspector of Factories and in the following year David Eves succeeded Jim Hammer as Deputy Director General. The Factory Inspectorate was then transformed into the HSE’s Field Operations Directorate (FOD), based on seven Regions. Tony Linehan became its distinguished first Director, guiding it with steady and experienced leadership. He was succeeded in 1992 by Tim Carter, HSE’s senior doctor who, being the first medical doctor since Whitelegge to have charge of the field force of Inspectors, lent a new perspective.
In 1995 John Rimington was succeeded by Miss Jenny Bacon as Director General. The Deputy Director General, David Eves, who was responsible for all operational work on behalf of the Executive, now also assumed the title of Chief Inspector, taking on the role of head of profession for all of HSE’s 1,700 Inspectors. All the Inspectorates and HSE’s technical and scientific staff now reported to the Deputy Director General. Dr Adrian Ellis FREng, previously head of HSE’s Technology and Health Sciences Directorate, succeeded Dr Carter as Director of Field Operations in 1996 and served until 2004. The ancient title of ‘HM Chief Inspector of Factories’ was sadly allowed to lapse after Eves’ retirement in 2002.
The Accident Prevention Advisory Unit became an Operations Unit, supporting an HSE-wide Operations Group headed by the Deputy Director General. HSE’s several Chief Inspectors, Chief Scientist, Director of Technology and Health Sciences and Director of Field Operations met regularly to discuss professional practices in inspection and enforcement, share experience and adopt common policies as appropriate.
Meanwhile a number of new ‘Next Steps’ Agencies had been formed elsewhere in government wherever a need had been recognised for Ministers to control policy but remain at arm’s length from operational decisions and delivery. Most of these, such as the Environment Agency and the Health Protection Agency, adopted a more conventional business model of Board governance, with non-executive directors and a Chief Executive. Continuing to enjoy political support, the tripartite Commission and the Executive survived the ‘red tape bonfires’, spending cuts, efficiency reviews and culls of ‘quangos’ which occurred during the ‘80s and ‘90s, reaching the height of their reputation as a trusted regulator towards the end of the 20th Century.
Yet it would only be a matter of time before the attention of Whitehall modernisers would return to question the regulator’s unconventional structure and methods of governance (see Chapter 21).
Chapter 13: Technology, Science and Medicine
The Factory Inspectorate had appointed its first medical inspector in 1898, the first specialist engineering inspector in 1899, the first electrical inspector in 1902 and an Inspector for Dangerous Trades in 1903. Over the following decades this technical, scientific and medical body of resource would be increased whenever budgets allowed, enriching the Inspectorate with specialised experience of every industrial sector and strengthening its credibility and authority.
By the 1960s the Specialist Branches’ strength exceeded eighty staff. Whilst a separate Employment Medical Advisory Service (EMAS) was established in 1973 within the Department of Employment, absorbing the Inspectorate’s doctors, by then the various engineering specialists had been brigaded into a headquarters branch under the management of a senior Inspector. Their role was chiefly to provide expert advice and evidence in support of the work of Inspectors in the districts but they were also working with standards institutions and preparing technical advice for publication. For many years a dramatically illustrated, popular magazine known as ‘Accidents’ was produced, explaining the causation and prevention of commonly occurring incidents.
Chief Inspectors’ Annual Reports show that the need to improve occupational health was steadily moving up the agenda. An Industrial Hygiene Unit was formed and the Chief Inspector described the work of the Inspectorate’s new occupational hygiene laboratory at Cricklewood in his report for 1973.
In addition to the specialist staff of the Factory Inspectorate, the staff of a number of other technical regulatory, medical and scientific organisations were transferred to HSE in 1975, including the Explosives Inspectorate (from the Home Office), the Employment Medical Advisory Service (with its doctors and occupational nurses returning from the Department of Employment), the Nuclear Installations Inspectorate and the Mines and Quarries Inspectorate (from the Department of Energy), the Safety in Mines Research Establishment, the British Approvals Service for Electrical Equipment in Flammable Atmospheres (BASEEFA), and the Alkali and Clean Air Inspectorate (from the Department of the Environment.)
These transfers and the return of EMAS considerably enriched the technical, scientific and medical expertise of the new national regulatory authority, enabling timely and credible investigation of the Flixborough disaster and expert support to the public inquiry that followed. This pattern of working would need to continue with investigations and reports of the several major incidents that occurred in the 1970s and 1980s, such as the disaster at the Abbeystead pumping station in 1984 or in major projects such as the building of the Channel Tunnel (for which the ability to engage the expertise of Mines Inspectors proved invaluable).
Several organisational changes were made to strengthen the management of these resources as the demands and public expectations of regulating the seemingly limitless range of activities and risks embraced by the new Act steadily increased. In 1986 a separate Technology Division was formed, based on the Factory Inspectorate’s specialists and part of a new Technical, Scientific and Medical Group under the Deputy Director General which included the laboratories, doctors and occupational nurses. Later, a Technology and Hazardous Installations Policy Directorate was formed in 1991 after the Executive gained responsibility for the offshore oil and gas industry in addition to its existing work on major hazards.
The Factory Inspectorate’s Industrial Hygiene Unit had been taken over by HSE when it was formed and its resources were considerably expanded in the Occupational Hygiene and Medical Laboratory located in Cricklewood. Great efforts were made by HSE to improve occupational health, which was later the subject of campaigns such as ‘Good Health is Good Business’. Issues that had received relatively little attention before such as noise, asthma, dermatitis and muscular skeletal disorders were all given priority.
The Medical Division of HSE employed a substantial number of doctors and nurses and policy makers drew on these expert resources to help develop evidence-based regulations and codes of practice such as for the Control of Lead at Work (1980 and 1988), Control of Asbestos at Work (1987) and Control of Substances Hazardous to Health (1988, 1992, 1994). Regulations for Noise at Work were made in 1989.
Establishing the scientific basis of accident and ill-health prevention
As already mentioned, well before the end of the 19th Century the Factory Inspectorate had found a need to provide technical support for its investigative and inspection work across a wide range of industries by recruiting specialist engineers, but it still lacked a laboratory-based capability for scientific investigation of causes of recurrent and emerging health and safety problems. While the Laboratory of the Government Chemist was available for occasional analysis of samples of chemicals taken by inspectors, its support was very limited. A laboratory dedicated to health and safety would not become available to the Factory Inspectorate until well after the Second World War.
However, as the First World War loomed, when there had never been a greater demand for maintaining British coal production, the Mines Inspectorate’s need for research into causes and prevention of explosions in coal mines led the Home Office to agree funding for an experimental scientific station at Eskmeals in Cumberland, which opened in 1911.
There had been numerous major incidents in coal mines causing multiple fatalities and loss of production. The worst occurred in 1913 when a disastrous explosion at the Universal colliery in Senghenydd, Wales killed 439 miners. Research was clearly essential if means were to be found to prevent these disasters. The need for action resulted in the establishment in 1921 of the Safety in Mines Research Board, funded by a levy on coal production. The Eskmeals facility was transferred to a moorland site at Harpur Hill, Buxton in Derbyshire acquired in 1924 for the large-scale facilities needed to develop and demonstrate practical measures for the prevention and suppression of explosions and fires and to establish rigorous procedures for testing mining explosives . Four years later a safety engineering laboratory was established by the Board in Portobello Street, Sheffield in conjunction with the University of Sheffield. A particular focus was research into flameproof electrical equipment needed to underpin the certification scheme operated by the University for motors and switchgear. Research on wire ropes was undertaken for the Board by a unit at Imperial College, London.
With the nationalisation of the coal industry after the Second World War, the Ministry of Fuel and Power transferred the SMRB’s functions to the Scientific Civil Service, forming the Safety in Mines Research Establishment (SMRE) in 1947. Extensive new laboratories were constructed in two stages at Red Hill, Sheffield in the late 1950s and early 1960s. In addition to the scientific laboratories, the new facilities provided accommodation for ancillary services such as workshops, libraries and the photographic services essential to the investigation of incidents. A new 400 m full-scale surface gallery was constructed at Buxton for the study of dust explosions and opened in 1964. Buxton was also the location for the testing facilities supporting the British Approvals Service for Electrical Equipment in Flammable Atmospheres (BASEEFA) and the Mining Equipment Certification Service (MECS), in later years to be merged as the Electrical Equipment Certification Service (EECS). The work of SMRE included full-scale proving of the effectiveness of barriers for explosion suppression, research into the characterisation and hence means of control of mine fires, development of innovative detectors for flammable and toxic mine gases and the ventilation requirements to control the adverse effects of buoyancy on the mixing of firedamp emissions (a prime factor in the causation of mine explosions). In addition to these mining-related topics, SMRE’s interests extended to cover topics of broader relevance such as ergonomics, analysis of accident statistics and provision of technical input to the development of British Standards for all kinds of lifting gear such as chains, shackles and wire ropes.
During the 1950s a Medical Services Laboratory and an Industrial Hygiene Unit were set up in London to support the work of the Factory Inspectorate. In 1973 these relocated to larger premises suitable for conversion to use as a laboratory that had been acquired in Cricklewood, North London.
Formation of the Health and Safety Executive in 1975 provided an opportunity to combine the work of all these laboratories and the certification services under single management to serve the needs of the new organisation. On the laboratories side, three distinct areas of research were identified and were organised to make optimum use of the staff and facilities at the three existing sites. The Explosion and Flame Laboratory (EFL) was based at Buxton with electrical work at Sheffield; the site at Sheffield housed the Safety Engineering Laboratory (SEL), with large-scale facilities at Buxton; and the Cricklewood laboratories became an integrated Occupational Medicine and Hygiene Laboratory (OMHL) incorporating the work on gas sensing and dust protection systems based at Sheffield. The whole was now named the Research and Laboratory Services Division (RLSD) of the Health and Safety Executive, with its HQ at Sheffield and its Director becoming a member of the HSE’s Management Board.
Building on the experience gained over previous decades across a wide range of industries, RLSD’s work continued to break new ground with major projects such as large-scale trials undertaken at Thorney Island, West Sussex on the atmospheric dispersion of heavier-than-air gas clouds, following the Flixborough explosion.
By now RLSD had achieved an outstanding international reputation. The staff provided the HSE’s inspectors with exceptionally powerful and diverse forensic investigative capabilities, for example enabling examination of the condition of Victorian cast iron gas mains independently of British Gas, their monopoly owner, following the gas explosion at flats in Putney which killed eight residents in 1985. Amongst many other investigations, vital work was done to provide evidence for the Public Inquiry into the King’s Cross underground station fire (1987) and Lord Taylor’s inquiry into the Hillsborough football stadium disaster (1989).
In 1992 the Cricklewood site closed and the staff relocated to a new building opened by HRH Prince Philip and named after Lord Robens, on RLSD’s Sheffield site at Red Hill. The three laboratories were unified as the Health and Safety Laboratory (HSL) in 1995 when Government policy led the Health and Safety Executive to decide that the laboratory-based services should operate as an agency of the Executive. Next, a Whitehall-wide drive for efficiency savings prompted the Executive to make a business decision to concentrate HSL at Buxton. A ‘state of the art’ laboratory was commissioned to be built on the existing site at Harpur Hill and paid for over thirty years under the Government’s Public/Private Partnership funding policy. The new laboratory opened in November 2004. The Sheffield site and buildings were acquired by the University of Sheffield and became the North Campus of the University.
A Chief Scientist
During the 1990s the Laboratory had become a semi-commercial operation, at liberty to bid for the European Commission’s research work and to seek work, up to a certain proportion of budget, from private companies. The Executive remained its primary customer with the Chief Inspector expecting first call on the Laboratory’s services in the event of needing support for a major investigation.
It had become fashionable for Whitehall Departments to appoint Chief Scientists and, as a major industrial regulator with a significant scientific and technological organisation, HSE followed suit. It was deemed inappropriate for this role to be performed by the Director of the Laboratory, as the Chief Scientist needed to be able to maintain a challenge role and be seen to be independent of the relationship between HSL’s laboratories and its customers. This problem was solved by the role being temporarily performed by HSE’s Deputy Director General until HSE’s distinguished senior scientist, Dr Jim McQuaid FREng, was available to take over.
In the meantime HSE’s research programme was expanding, based on an annual budget of around £30 million. A separate budget was managed for nuclear safety research, paid for from the ‘nuclear levy’. HSE was entrusted with part of the Medical Research Council’s research budget and steps were taken to ensure that health as well as safety was being covered. An annual ‘competition of ideas’ was held, inviting external bids for funding. Proposals were assessed by HSE’s Research Committee against a published research policy framework and clear criteria. Over time, the results underpinned much of HSE’s published guidance and supported its evidence-based approach to policy making.
Chapter 14: New risks, new responsibilities
It became clear during the 1970s that a dramatic structural change had begun in British industry. Some would later describe this as the second Industrial Revolution. Nationalised industries, which since the Second World War had enjoyed monopolies in gas, water and electricity distribution, shipyards, steel works, railways and airlines, began to be privatised, the weakest going to the wall. Inefficient and unprofitable mines managed by the National Coal Board (later British Coal) since 1946 were closing, with serious unrest. National strikes occurred in 1972 and 1974 but the closures continued.
However the strikes disrupted the supply of electricity produced by coal-fired power stations and for a period during 1974 the Conservative Government limited the commercial use of electricity to a three day week. Inspectors had to plan their visits accordingly.
Meanwhile as manufacturing industry shrank the Services sector was expanding rapidly and rising in economic importance. There was no doubt that as the decline of heavy industry continued, the trend towards services was helping towards reducing the national toll of deaths and serious injuries, with fewer people exposed to serious risks. The 1970s also saw the fortunate discovery of North Sea oil and gas reserves, and by the 1980s the offshore industry had become a major new sector contributing to the UK’s economy.
New technology was transforming what remained of British manufacturing industry, for example by the introduction of automation, computer aided design and robotics. Entirely new industries were emerging, presenting possible new risks such as those arising from genetic modification, biotechnology or nanotechnology, processes which HSE needed to learn about and understand.
New regulations followed thick and fast during the 1980s, punctuated by major incidents highlighting fresh problems to which the regulator needed to respond. The Commission’s report for 1977 said ‘Our overriding concern is… to stimulate awareness of the risks and encourage the joint participation of workers and management in efforts to eliminate them.’
The post-war period had been relatively free of major industrial incidents but while the aforementioned disaster at Flixborough in 1974 was the worst it was not the first serious accident to have occurred since the war. The previous year an explosion at a gas works in Sheffield had killed three men. Bill Simpson, the Commission’s first Chairman, memorably declared that ‘It is a sober fact of health and safety matters that awareness is kindled by catastrophe and our experience shows there is nothing like actual events for moving public opinion and political action’.
Now that the law had such a wide scope the work of Inspectors was no longer confined to conventional industrial premises. The 1974 Act had extended health and safety law to cover a host of services provided by local government and activities such as schools, hospitals, fairgrounds. With the public now covered by the law, concerns about their safety and health began to loom larger in the Commission’s annual reports as new risks presented themselves.
An incident at River Road, Barking caused the temporary evacuation of 4,000 local residents in 1980. The decade was punctuated by the need for the HSE to respond to unconventional major incidents inquiries, such as an explosion of methane gas at a pumping station at Abbeystead in 1984 which killed 16 visitors, a mains gas explosion in flats at Putney in 1985, a horrific fire in 1985 at Bradford City FC’s stadium in which 56 spectators lost their lives, fires and explosions causing fatalities at Grangemouth oil refinery in 1987 and a terrible crowd crush at Hillsborough football ground, Sheffield in 1989 which caused the deaths of 96 supporters of Liverpool FC. In 2014 a new inquest was opened into that disaster.
By now the sheer variety of the work confronting Inspectors was quite remarkable. In 1983 HSE began licensing contractors stripping asbestos and in 1984 started to regulate genetic modification processes. A spate of serious accidents to the public at fairgrounds required HSE to work closely with the Showmen’s Guild and others in the leisure industry to raise standards of safety and maintenance at rides.
In 1985, after the privatisation of British Gas, HSE became responsible for regulating gas safety and almost immediately was required to investigate an explosion at flats in Putney which killed eight residents. Gas had escaped from a fractured cast iron main. This was only the latest of a long series of gas explosions caused by broken mains and HSE entered into a lengthy tussle with British Gas to achieve an acceleration of their mains replacement programme.
Improving domestic gas safety was another new challenge, with some thirty members of the public dying each year from carbon monoxide poisoning caused by faulty appliances. HSE introduced an approval system for registered gas installers in a bid to raise the standards of installation and maintenance of domestic gas appliances.
Responsibility for inspection of theatres and sports stadia for different purposes was shared with Fire and Local Authorities as well as HSE. Serious weaknesses in this system of regulation were exposed by the fire at Bradford City Football Club. HSE was sued together with other authorities in a civil action but was exonerated by the judge.
Not every disaster that exposed a regulatory gap or failure led to the Executive assuming new responsibilities. In 1989, a shocking catastrophe occurred on the River Thames at Southwark Bridge when a pleasure craft, the Marchioness, was struck and capsized by a larger commercial vessel, the Bowbelle. 51 young people were drowned. John Prescott MP, Opposition spokesman for transport (later Deputy Prime Minister and Lord Prescott), was in favour of giving HSE responsibility for regulating marine safety but after an inquiry by Lord Justice Clarke the Government decided to allocate responsibility to a newly formed, separate Maritime and Coastguard Agency (MCA).
HSE found itself responsible for inspection of numerous Crown premises including defence research laboratories such as Porton Down and other sensitive establishments that required high levels of security clearance. As the Crown was exempt from prosecution and other enforcement powers in the 1974 Act, a voluntary system of ‘Crown notices’ was agreed within Whitehall in 1998 whereby HSE would ‘enforce’ where necessary. A ‘Crown censure’ would record any serious breach of health and safety law whereby, were it not for Crown immunity, a prosecution would have been taken. This system worked reasonably well but many continued to argue that Crown immunity should be removed.
Other issues arose unexpectedly from time to time to which the regulator needed to respond. These could involve investigation of serious risks to public health: for example, outbreaks of Legionnaire’s Disease, sometimes having fatal consequences, were often traced to poorly maintained air conditioning towers. HSE responded by developing a Code of Practice explaining the necessary preventive measures.
A spate of regulations
New requirements for the reporting of accidents were introduced by the Notification of Accidents and Dangerous Occurrences Regulations 1980 (replaced in 1985 by Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR), amended in 1995 and yet again in 2013).
Regulation-making continued apace in the 1980s. Provision of First Aid was addressed in 1981, followed by licensing of firms stripping asbestos in 1983. That year HSE took over responsibility for enforcing the Health and Safety (Genetic Manipulation) Regulations 1978 from the Department of Education and Science and the Factory Inspectorate celebrated its 150th Anniversary. In 1984 the Commission established an Advisory Committee on Genetic Manipulation (replaced in 2004 by the Scientific Advisory Committee on Genetic Modification). Regulations controlling risks at major hazard sites were introduced in 1984 and for ionising radiations in 1985.
The expansion of HSE’s work during this period and its diversity are illustrated by its taking on responsibility for the transport and regulation of dangerous goods, under the Dangerous Substances (Conveyance by Road in Packages) Regulations 1986 and since then, for enforcement of the Carriage of Dangerous Goods and Use of Transportable Pressure Receptacles Regulations 2009). In 1978 a disastrous road tanker explosion had killed 217 at a Spanish campsite.
In 1986 HSE began enforcing the Control of Pesticides Regulations (replaced in 1997 by regulations of the same name). Regulations for the Control of Asbestos at Work followed in 1987, the year of the disastrous Kings Cross Underground Station fire. Although not yet responsible for railway safety, HSE conducted research into the cause of the fire at its Buxton laboratory in support of the public inquiry.
The frenetic pace was kept up in 1988 by the making of controversial Control of Substances Hazardous to Health Regulations (COSHH), only possible after a lengthy period of negotiations brokered by the Executive. These regulations required employers to carry out risk assessments to ensure that workers were not being exposed to injurious substances. Equally controversial Noise at Work Regulations were made in 1989 in spite of much opposition on grounds of the feared costs of implementation. Eventually a more stringent European Directive prompted their replacement by the Control of Noise at Work Regulations 2005.
In 1990, railway safety and nuclear safety research were added to HSE’s growing list of responsibilities. The Piper Alpha disaster resulted in offshore safety being transferred to HSE in 1991. None of these acquisitions arose from the national safety regulator actively seeking to aggrandise itself. There was more than enough to do. After four teenagers were drowned in 1993 on a canoeing course at an adventure activities centre in Lyme Bay, the centre’s director was prosecuted and jailed for manslaughter. Responding to public pressure, Ministers wanted activity centres to be licensed but the Health and Safety Commission declined the opportunity to take on this responsibility, believing that licensing should be reserved for riskier activities and that compliance with health and safety law should be sufficient in this sector. Nevertheless, bowing to public pressure, the Government established a separate Adventure Activities Licensing Authority (AALA) in 1996. Ironically, after the Hampton Review of Regulators in 2005 the AALA was placed under HSE’s wing.
Some signs of improvement
While major incidents continued to occur in the 1990s, such as the fires at Allied Colloids and Hickson and Welch in 1992, Associated Octel and Texaco’s Pembroke oil refinery in 1994, it was clear from the annual statistics published by HSE that fatal and serious injuries were generally declining year on year. That some of this trend was attributable to fewer workpeople being exposed to high risks, as heavy industry declined, was undeniable but by now the health and safety system could begin to take some credit for a general improvement in the national health and safety performance. Between 1974 and 2013 fatal injuries to employees fell by 85% and non-fatal injuries by 77%. The fatal injury rate dropped during the period from 2.9 to 0.4 per 100,000 employees. Research commissioned by HSE suggested that about half of the reduction in non-fatal injuries could be accounted for by changing employment patterns and occupations.
In the ‘post-industrial age’ that was now beginning, new priorities were emerging, prompted by concerns about behavioural issues such as workplace stress, bullying and violence to staff, and physical illnesses such as muscular skeletal disorders, which had received little attention in previous decades. HSE responded with awareness-raising campaigns such as ‘Good Health is Good Business’ and ‘Lighten the Load’. Manual Handling Regulations were made in 1992 and revised in 1999.
Estimates based on Labour Force Surveys conducted between 1990 and 2012 showed a steady decrease in the total number of cases of work-related illness, particularly musculoskeletal disorders, but an increase in the total number of cases of stress (which had doubled since 1974), depression and anxiety. Deaths from asbestos-related diseases continued to increase up to 2010, with many arising from work-place exposures that had occurred many years earlier.
Chapter 15: Influencing policy at home and abroad
Soon after its formation HSE established an Economic Advisors Unit (EAU) employing professional economists to carry out cost benefit analyses in support of new regulatory proposals. The origin of the policy lay in Appendix 9 to the Robens Report of 1972 which discussed the need for research into the economics of accidents and accidents prevention.
The costs and benefits of health and safety
Lord Rayner’s review of Whitehall efficiency commissioned by Prime Minister Margaret Thatcher in 1979 prompted HSE to commission its own review of the costs and benefits of health and safety and the costs of accidents. A report by HSE economists Morgan and Davies was updated in 1994 by Davies and Teasdale. Their report separately identified estimated costs to the individual, to the employer and to society as a whole. Around this time the value of a life was estimated at £1 million. Certainly, the cost to a business of an employee’s fatal accident more than exceeded that figure just in terms of compensation and business interruption, aside from any fines and legal costs.
At the time, some argued that health and safety should always be given priority in policy decision making. However, HSE’s economists argued that because government had to make choices when allocating scarce resources, the right way to take account of health and safety when deciding policies about preventive measures and regulation of risk was to place a monetary value on the costs of work related injuries and ill health. This approach has been followed to the present day. As well as providing justification for regulations, it has also enabled HSE to promote the ‘business case’ for health and safety and run evidence-based campaigns such as ‘Good Health is Good Business’ (1995). The aim of this campaign was to help employers, particularly those in small and medium sized enterprises, reduce ill-health amongst their workers, save money and improve ‘the bottom line’.
Meanwhile HSE was pressing the European Commission to apply cost benefit analysis during the preparation of Directives.
Influencing Europe and the rest of the world
After a referendum in 1973 the UK became a member of the European Economic Community and then in 1992 a member of the European Union. A series of Treaties culminating in agreement to qualified majority voting, whereby the UK would not be able to veto European policy Directives, eventually led to a surrender of sovereignty over UK health and safety law to the European Commission and Parliament. These developments would have profound implications for the development of the framework of regulations, codes of practice and guidance that Robens had envisaged would support greater self-regulation by industry.
After a hard struggle by British negotiators to win consistency with the UK’s risk-based regulatory framework, the European Framework Directive on Safety and Health at Work (89/391 EEC) was adopted in 1989. Regarded by the European Commission as ‘a substantial milestone’ in improving safety and health at work, it aimed to guarantee minimum safety and health requirements throughout Europe while allowing Member States to maintain or establish ‘more stringent measures’. The Directive incorporated important features of the UK’s approach, for example including the principle of risk assessment, basing prevention on hazard identification, worker participation, risk control measures, documentation and periodical re-assessments of workplace hazards. Risk assessments had to be written down but firms employing fewer than five were exempted from this requirement.
The Framework Directive together with five ‘daughter directives’ which separately covered workplaces (89/654 EEC), work equipment (89/655 EEC), personal protective equipment (89/656 EEC), manual handling of loads (90/269 EEC) and display screen equipment (90/ 70 EEC), all had to be transposed by Member States into their national law. Some simply copied out the directives but the UK transposed them by consulting stakeholders before making the Management of Health and Safety at Work Regulations 1992 (amended in 1999) and five other sets of regulations. Collectively these became known colloquially as the ‘Six Pack’. However, these steps were not sufficient to prevent the European Commission launching infraction proceedings against the UK some years later, alleging inadequate transposition by use of the phrase ‘so far as reasonably practicable’ which qualified some duties. Fortunately the European Court decided in the UK’s favour.
HSE continued to earn a high reputation amongst international regulatory colleagues who showed great interest in the British approach. Its Inspectors participated actively in international fora. For example, the Factory Inspectorate was a founder member both of the EU’s Senior Labour Inspectors’ Committee (SLIC, formed after the UK entered the European Common Market) and of the International Association of Labour Inspection (IALI, for which HSE provided a succession of Presidents and Secretaries General over the years). The Mines Inspectorate, Offshore Division and Nuclear Installations Inspectorate forged similar close ties with their international colleagues, for example the NII with the US Nuclear Regulatory Commission. By the sharing of experience and ideas made possible by these professional relationships, benefits accrued to other countries’ development of health and safety as well as strengthening the UK’s own system. The Senior Labour Inspectors’ Committee introduced a system of mutual auditing of its members’ work and, from time to time, the International Labour Office would carry out its own independent audits of countries’ health and safety systems under the ILO Labour Inspection Convention 81 of 1947, which the UK helped develop and had been one of the first countries to ratify.
While European Member States were bound to comply with Directives, under the principle of ‘subsidiarity’ they could implement these in ways best suited to their national arrangements. There was no uniform model that had to be followed. By agreement between members of the Senior Labour Inspectors’ Committee it became possible for Inspectors to be seconded to another country’s authority for several weeks in order to gain experience of a different enforcement regime. The Inspector would customarily report his or her findings to the host authority before returning home. The Factory Inspectorate was given food for thought when a Dutch Inspector, referring to the UK’s regulation of occupational health, remarked ‘You are good, but you are not as good as you think you are’.
Chapter 16: Hazard, risk and the precautionary principle
In addition to legislation passed by Parliament, over the decades judges were creating case law, usually resulting from a civil action following an accident, but sometimes from an Inspector’s prosecution for a breach of health and safety law.
‘So far as is reasonably practicable’ (SFAIRP)
A notable civil case Edwards v National Coal Board 1949 contained a pronouncement about the meaning of ‘practicable’ and ‘reasonably practicable’. These were important concepts in safety law as use of these words qualified certain duties that might otherwise have been absolute and impossible to fulfil. However, as there were no statutory definitions of their meaning judgments in civil cases were helpful in clarifying what the statutory duties meant.
A legal textbook current at the time, Redgrave’s Factory Acts, explained judges’ interpretations as follows:
‘“Reasonably practicable” is a narrower term than “physically possible” and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble, involved in the measures necessary to avert the risk is placed in the other; and that, if it be shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon whom the duty is laid discharges the burden of proving that compliance was not reasonably practicable. This computation falls to be made at a point of time anterior to the happening of the incident complained of.
Where an obligation is qualified solely by the word “practicable” a stricter standard is imposed. What this term connotes, however, is not an easy matter to decide. Measures may be practicable which are not reasonably practicable but nonetheless “practicable” means something other than physically possible. The measures must be possible in the light of current knowledge and invention. Thus, it is impracticable to take precautions against a danger which cannot be known to be in existence or to take precautions which have not yet been invented, so that the concept of practicability introduces at all events some degree of reason and involves at all events some regard for practice. If a precaution can be taken without practical difficult, then it is a practicable precaution, notwithstanding that it may occasion some risk to those who take it and even though that risk far outweighs the benefits to be achieved.’
These concepts were carried forward into the general duties of the 1974 Act and subsequently the making of numerous regulations and approved codes of practice. Arguably, assessment of risks in order to ensure health and safety so far as was reasonably practicable, was already implicit in the general duties because of interpretations that had been given by judges in earlier case law. But in order to implement the European Framework Directive an explicit duty to assess risks (and write the assessment down if more than five were employed) was included in the Management of Health and Safety at Work Regulations 1992, together with a requirement to appoint a ‘competent person’ to assist the duty holder.
Confusingly, another phrase, ‘as low as reasonably practicable’ (ALARP) was commonly used by some as synonymous with the meaning of ‘so far as is reasonably practicable’. This was simply the view of risk experts that, in order to comply with the statutory duty to ensure health and safety so far as was reasonably practicable (SFAIRP), an employer needed to be able to demonstrate that risks had been reduced to a level that was low as reasonably practicable. ALARP and SFAIRP were different concepts, one being the questionable invention of experts and the other legitimised in statutes and by judges in case law. Another phrase invented by experts, ‘as low as reasonably achievable’ (ALARA), was also to be heard. A mystique surrounding ‘risk’ was developing amongst experts which, in the long run, would become a factor contributing to a deregulatory backlash in the early 21st Century.
‘Hazard’, ‘risk’ and risk assessment
At a planning inquiry held in 1987 into the proposed building of Sizewell B nuclear power station in Suffolk, Sir Frank Laycock asked HSE to explain its understanding of ‘risk’ and how its staff reached a view about its acceptability. This led to publication by HSE in 1988 of a seminal document entitled ‘The tolerability of risk from nuclear power stations’. This report, prepared by a team led by HSE’s Director General John Rimington, discussed in considerable depth how certain risks to individuals and risks to the general public (‘societal risks’) might be regarded as ‘acceptable’, the problem of ‘uncertainty’, and comparisons between different occupational groups. It was accompanied by a simple, carrot-shaped diagram showing ‘intolerable’ risk at the top and ‘insignificant risk’ beneath, with a ‘tolerable’ region between.
These concepts were more widely applicable than just to the nuclear industry and the report was greeted with enthusiasm by larger corporations in high hazard industrial sectors, such as the chemical process industry. But many employers, particularly those in smaller companies without a source of in-house qualified expertise, continued to struggle with their duty to assess risks and write the assessment down. Notwithstanding that risk assessment was simply a means to an end, which was to manage and keep risks to health and safety under control, a welter of unauthorised guidance sprang up from various sources such as insurance companies and a growing number of consultants, qualified or otherwise, who were very willing to offer advice or carry out assessments for a fee. Recognising an opportunity, a few Inspectors left HSE to set up their own consultancies.
Technical terms such as ‘Quantified risk assessment’ (QRA) and ‘Probabilistic risk assessment’ (PRA) had entered the lexicon of experts but were mystifying the less sophisticated and passing over the heads of small employers lacking in-house expertise. As they grappled with new duties under the so-called ‘Six Pack’ it became clear that many confused the meanings of ‘hazard’ and ‘risk’ and had little understanding of how they were expected to go about their identification of hazards and assessment of risks, let alone manage them. This prompted HSE to publish simpler guidance such as ‘Five Steps to Risk Assessment’ in which ‘Hazard’ was described as ‘anything that may cause harm, such as chemicals, electricity’ whereas ‘Risk’ was ‘the chance, high or low, that somebody could be harmed by these and other hazards, together with an indication of how serious the harm could be’.
‘The precautionary principle’
The so-called ‘precautionary principle’ was another concept which played into the regulatory philosophy. Policy guidelines, agreed by a Whitehall-wide Interdepartmental Liaison Group on Risk Assessment (ILGRA) on which HSE was represented, declared in 2002 that the ‘purpose of the precautionary principle is to create an impetus to take a decision notwithstanding scientific uncertainty about the nature and extent of the risk.’ It went on to say that the principle should be invoked when there was good reason to believe that harmful effects might occur to human, animal or plant health or to the environment, and the level of scientific uncertainty was such that the best available scientific advice could not assess the risk with sufficient confidence to inform decision-making. In short, when uncertain a presumption should be made in favour of safety.
Alongside the ‘systems’ approach to managing health and safety that the goal-setting 1974 Act had made possible, as portrayed in HSE’s landmark publication ‘Successful Health and Safety Management’ of 1991, ‘behavioural science’ and the study of ‘human factors’ had also become topical. In 1999 HSE published ‘Reducing error and influencing behaviour’ which examined how human factors affected workplace health and safety and offered advice for employers.
During the 1990s HSE also published simpler guidance intended to help small and medium sized enterprises (SMEs), such as ‘Essentials of Health and Safety at Work’. The need for simple guidance aimed at SMEs persisted and other publications such as ‘The health and safety toolbox: How to control risks at work ‘and ‘Health and safety made simple’ were later made accessible via the Internet. HSE’s risk-based approach to regulation was explained in ‘Reducing Risks, Protecting People’ published in 1999.
Well before the Sizewell B planning Inquiry took place, much of the early thinking about risk had been generated by experts in the nuclear industry, the Nuclear Installations Inspectorate (NII) and bodies such as the National Radiological Protection Board and the United Kingdom Atomic Energy Authority’s Safety and Reliability Directorate.
The Inspectorate’s origin lay in the ashes of the disastrous fire in Pile 1 at the UKAEA’s Windscale site in 1957. This, the worst nuclear accident ever to have occurred in the UK, was investigated by the Fleck Inquiry and led to the passing in 1959 of the Nuclear Installations Act, establishing a regulatory regime for nuclear safety based on licensing of installations. A new, separate Nuclear Installations Inspectorate (NII) was given responsibility for assessing risks to safety and licensing the UK’s nuclear power stations and other nuclear establishments, such as British Nuclear Fuels Ltd’s site at Sellafield, Cumbria and the UKAEA’s sites at Harwell and Dounreay.
In 1975 the NII was reluctantly transferred from the Department of Energy to the newly formed Health and Safety Executive, becoming part of HSE’s Nuclear Safety Directorate. As well as continuing to regulate the UK’s 37 licensed nuclear sites, the NII also gave expert evidence to planning inquiries examining proposals for building new reactors, such as at Hinckley Point, Somerset and Sizewell, Suffolk. The Inspectorate gained a high international reputation by assisting other national regulators and the International Atomic Energy Authority in responding to major nuclear accidents, such as at Three Mile Island in the USA, Chernobyl in the Soviet Union and, most recently, Fukushima in Japan.
Responsibilities for ensuring nuclear security (as distinct from safety) were given to HSE in 2007 as a result of the Hampton Report of 2005, which had been commissioned by the New Labour Government with the aim of reducing the number of regulatory bodies. The Office for Civil Nuclear Security (OCNS) and UK Safeguards Office (UKSO) were transferred to HSE, making its Nuclear Directorate responsible for matters relating not only to nuclear safety at the UK’s 40 licensed sites but also to their security and safeguards..
In 2011, a new Office for Nuclear Regulation (ONR) was created by government with a mission described as ‘to secure the protection of people and society from the hazards of the nuclear industry’. Set up initially as an agency of HSE, the ONR was made responsible for regulating the safety and security of the UK’s civil nuclear industry and absorbed the HSE’s Nuclear Directorate, with the aim of establishing a new, independent Nuclear Statutory Corporation (NSC) by 2014.
Chapter 17: Railway Safety
After the Second World War, nationalisation of the railways in 1947 had needed a new regulatory relationship to be forged with the state-owned British Railways, a newly created monolithic operator of the entire national rail network, sponsored by the Department of Transport. At the time, fatal injuries to railway workers, let alone members of the public involved in train crashes or at level crossing accidents, were averaging around 250 a year. There were major safety problems to be solved, but solutions seemed difficult to find in a monopolistic industry entrapped in a culture of complacency and weakly regulated.
Co-location of responsibilities for both industrial sponsorship and safety regulation within a single department does not make for a successful safety regime, as Lord Cullen’s inquiry into the Piper Alpha offshore disaster later demonstrated. Public inquiries into a disastrous fire at King’s Cross London Underground station in 1987 in which 31 people lost their lives (the Fennel Report) and a train collision at Clapham in 1988 which killed 35 people (the Hidden Report), persuaded the Government of the day that the Railway Inspectorate should leave the Department of Transport to join the larger, independent HSE. There they could enjoy access to a wider range of regulatory experience and technical resources, where a system of regulation based on risk assessment and approval of safety cases could be developed, backed by a robust culture of enforcement when necessary.
The Department of Transport’s twenty seven inspectors were duly transferred to HSE in December 1990. Benefits to the safety of railway workers and the travelling public soon accrued from the move. Several lives were saved every year by insistence on the introduction of safe systems of work for protection of trackside maintenance operatives, who were at risk of being struck by fast approaching trains they could not hear until too late to move away.
An investigation by HSE into the causes of passengers falling to their deaths from moving trains was supported by independent research conducted by the Health and Safety Laboratory. Hitherto, every year the score or so of hapless members of the public who fell to their deaths had been assumed to be drunk or suicidal. Tests at the Laboratory established that failure to maintain door locks (originally designed by Victorian engineers) on ‘slam door’ passenger rolling stock could leave a door unsecured but held shut in its frame, seemingly closed until an unwitting passenger leant against it. Pressure on the British Rail Board caused them to respond by designing doors with guard-controlled electrical interlocks and, over time, phasing out ‘slam door’ rolling stock. These steps were soon saving several more lives a year.
Research effort was also put into improving crash worthiness of rolling stock, particularly the old Mark 1 stock, whose shed-like construction on a rigid under-chassis caused them to over-ride each other in a collision and telescope dangerously. However, fatal accidents at level crossings, particularly the half-barrier type, continued to occur and were usually caused by members of the public taking unnecessary risks for the saving of a little time.
During this period the Queen in Privy Council agreed that the Railway Inspectorate should be honoured by attaching the prefix ‘HM’ in its title, so sharing a privilege already proudly enjoyed by several other Inspectorates. But the closer beneficial relationship now being forged with their HSE colleagues was destined to survive less than two decades.
New challenges confronted the Railway Inspectorate arising from government’s decision to privatise the railways. The Railways Act of 1993 led in 1994 to separation of control of infrastructure from train operation, followed by emergence of a complex web of more than a hundred private companies providing services such as maintaining the track and signalling infrastructure, running trains, leasing rolling stock and operating stations.
Railway safety cases
Statutory arrangements underpinning railway privatisation required the introduction in 1994 by HSE of Railway (Safety Case) Regulations. Arrangements for managing the safety of their operations now had to be explained by operators and approved by the Inspectorate after thorough assessment, along the lines of offshore safety regulations, a move designed to assure the doubting travelling public that safety would be maintained after privatisation. Another set of regulations made in 1994, the Railways and Other Transport Systems (Approved Works, Plant and Equipment) Regulations (ROTS) required new rolling stock and infrastructure posing a significant risk to be assessed and approved before it could be brought into use.
Approvals work is costly in regulatory resources and, in spite of HSE’s considerable efforts to bolster the Railway Inspectorate’s resources by recruitment and internal transfers from other inspectorates, it proved difficult to keep abreast of the rapidly growing workload. It was also becoming evident that collective failure by the restructured industry to address safety management issues firmly and control new risks in this newly fragmented national system, was an underlying cause of a string of accidents that began occurring.
Signals passed at danger
Some of these resulted from drivers passing signals at danger (incidents colloquially known as ‘SPADs’). When collisions occurred for this reason drivers had tended to be blamed rather than the often flawed signalling systems they were required to observe.
In 1997 a serious head-on collision between two trains at Southall, Middlesex, was caused by a driver’s failure to observe a red signal. This accident was still under investigation (the Uff Inquiry) when in October 1999 one of the worst railway crashes of recent years, occurred at Ladbroke Grove near Paddington. An outward bound train passed a signal at danger and was routed directly into the path of an oncoming express train. A driver and 31 passengers lost their lives in the high speed collision and subsequent fire and over 500 more were injured. Several SPAD incidents had already occurred at this location.
Lord Cullen (who had inquired ten years earlier into the Piper Alpha offshore disaster) was appointed by the Deputy Prime Minister to hold the inevitable public inquiry. He and Professor Uff also held a joint inquiry into train protection and warning systems, taking account of lessons learnt from both accidents and a technical report by Sir David Davies FREng who had been asked to examine automatic train protection systems.
While Lord Cullen laid the blame primarily on the railway companies concerned, the Health and Safety Executive and its Railway Inspectorate had to accept criticism for a lack of vigour in pressing for signalling improvements at the site of the accident. Although no regulator can ever reasonably be held responsible for the day to day running of railways, it was clear that public confidence in the safety of railway operations and their regulation needed to be bolstered.
Installation of a system of Automatic Train Protection (ATP) had been recommended as a preventive remedy in several earlier reports of accidents caused by SPADs and was strongly supported by ASLEF, the trade union representing locomotive drivers (who were usually the first to lose their lives in any collision). But ATP was resisted by the industry on grounds of excessive cost. Eventually the Railway Safety Regulations of 1999 led to introduction of a Train Protection Warning System (TWPS) as an affordable alternative to ATP, and to the phasing out of the old, poorly constructed Mark 1 rolling stock from main lines.
A dramatic reduction in SPADs was soon evident. However, investigation of another serious incident in 2000, the derailment of a North bound express train at Hatfield in which four passengers died and seventy were injured, revealed a startling deterioration in the condition of track railheads. This prompted a costly network-wide exercise to identify and replace any similarly damaged rails but also suggested poor management of rail maintenance contractors. In 2002 another derailment at Potters Bar, in which seven were killed and seventy six injured, was found to have been caused by faulty maintenance of points.
By now, public confidence in the railways had evaporated and Ministers could see that radical action had to be taken to restore it. They decided to replace Railtrack with a new organisation, Network Rail, with overall responsibility for control of the infrastructure.
Lord Cullen’s recommendations following his inquiry into the Ladbroke Grove disaster resulted in establishment of an independent Rail Safety and Standards Board in 2003 and an independent Rail Accident Investigation Branch in 2005. Both of these were quite separate from HSE, who for the time being remained responsible for regulation of railway safety and the Railway Inspectorate. However, the industry continued to argue that they were too constrained in improving the railway by having to respond to conflicting demands from too many regulatory authorities. Strenuous lobbying persuaded Ministers to transfer responsibility for health and safety on the railways from HSE to the Office of the Rail Regulator (ORR). The Railway Inspectorate that HSE had nurtured and built up to 117 Inspectors from the 27 who had joined HSE in 1990, duly transferred to the ORR on 1 April 2006, ushering in a new era of railway safety regulation.
Eight years after the collision at Ladbroke Grove, in 2007 Network Rail, legally liable as successor to Railtrack, was fined £4 million for breaches of health and safety law relating to that disaster. Thames Trains, the train operator whose inexperienced driver had paid with his life, had already been fined £2 million pounds.
Chapter 18: Major industrial hazards
During the 1960s the Factory Inspectorate had recognised a need to develop its understanding of fire and explosion hazards. The Inspectorate began employing a small number of specialist chemical inspectors, based in headquarters, but available to support local inspectors in the districts. The Chief Inspector drew attention in his annual reports to the growing size of inventories of hazardous materials stored and used in the chemicals process industry and issued a prescient warning about the increased chances of a major accident. There had been several serious incidents in recent years but no major disasters since the war. Sadly, that was simply a matter of time.
In 1974 a massive explosion and fire occurred at Nypro UK’s chemical works at Flixborough, Lincolnshire, killing 28 workers and injuring 36, and destroying the entire plant. Fires raged for ten days before they could be extinguished. Off-site consequences were also severe, caused by the blast damaging some 2000 surrounding homes and businesses and injuring 53 members of the public.
While this disaster, the worst in the chemicals industry since the war, was being investigated by the Factory Inspectorate, the Secretary of State for Employment set up a Court of Inquiry under Section 81 of the Factories Act 1961 (it was to be the last of its kind) under the chairmanship of Mr R. J. Parker QC. The newly appointed chairman of the soon to be formed Health and Safety Commission, Bill Simpson, was a member of the Court. It reported its findings in 1975.
Prior to the establishment of HSE, the Factory Inspectorate had already formed a Major Hazards Branch, a Risk Assessment Group and a Major Industrial Hazards Advisory Committee. The Commission swiftly established its own Advisory Committee on Major Hazards (ACMH) to consider problems associated with large-scale industrial premises conducting potentially hazardous operations. The committee’s First Report was published in 1976.
Meanwhile, a public inquiry was being held under planning law to consider the proposed building of a refinery at Canvey Island, Essex, an area in the Thames estuary where there was already a concentration of major hazard sites. HSE gave expert evidence concerning risks associated with the proposals, thus assisting for the first time in a local planning decision, and was soon recognised as an expert national authority in risk assessment. HSE formed a group of specialist inspectors in who were given the task of developing techniques for assessing and defining risks at major hazard sites. This group became known as the Major Hazards Assessment Unit (MHAU).
In 1982 notification of major hazard sites was required by the Notification of Installations Handling Hazardous Substances Regulations (NIHHS). Around this time HSE entered into ‘call off’ contracts with specialist organisations such as the Safety and Reliability Directorate of the United Kingdom Atomic Energy Authority, in order to have supplementary expert resources available as and when they might be required.
In 1976 a disastrous event at Seveso, Italy, where a toxic cloud containing dioxin was released from a chemical works and drifted towards Milan, had stirred the European Commission into regulatory activity on major hazards. By 1982 the first European directive intended to reduce the risks of such a disaster occurring was issued, known as ‘Seveso I’. In 1984 a catastrophic release of gas from a small pesticide plant occurred at Bhopal, India in 1984. The disaster was estimated to have killed or injured many thousands of people living close by the factory, and led to another European Directive in 1996 (‘Seveso II’).
These directives were implemented in the UK by regulations for Control of Industrial Major Accident Hazards (CIMAH) in 1984 and then by the Control of Major Accident Hazards Regulations 1999 (COMAH, amended in 2005). These applied to large-scale storage and handling of hazardous industrial chemicals. Depending on size of inventories, they required a documented Major Accident Prevention Policy and a safety report that demonstrated that all necessary measures had been taken to minimise risks both to the environment and to the local population. A ‘Joint Competent Authority’ comprising the Environment agencies for England, Wales and Scotland, and the Health and Safety Executive, was responsible for enforcement.
Additionally, notification to fire authorities of sites with certain specified quantities of hazardous materials was required under the Dangerous Substances (Notification and Marking of Sites) Regulations, made in 1990. Firefighters had often found themselves called to incidents at premises where they had little or no prior knowledge of the dangers they might encounter, such as in 1984 at Brightside Lane, Sheffield.
Loss prevention, inherent safety and safety by design
Meanwhile the powerful business incentive of needing to avoid major financial losses by introducing loss prevention systems was driving the UK’s chemical process industry towards finding its own solutions for the prevention of catastrophes. Outstanding safety professionals like Trevor Kletz of ICI had accumulated vast operational experience that taught them simple truths, such as ‘what you don’t have can’t leak’. Processes were inherently safer if it was unnecessary to keep large quantities of hazardous materials on site or in process plant. Hazard and Operability Studies (HAZOPS) were introduced to identify stages in processes which could give rise to avoidable risks, and the concepts of inherent safety and safety by design became embedded in the industry’s approach to safety management. These principles would serve the chemical process industry in good stead when the COMAH regulations were introduced and later became widely accepted as relevant to other major hazard industries.
Lessons are not always learnt. A massive explosion and fire at the Buncefield Oil Storage Depot, Hemel Hempstead in 2005, the worst since Flixborough in terms of damage, was a stark reminder that regulations alone do not prevent catastrophes. The cause was a simple failure of a level gauge leading to uncontrolled overfilling of a storage tank with highly flammable fuel.
The ‘Seveso II’ Directive was updated in 2008. HSE decided that the NIHHS Regulations could be regarded as superseded by amended COMAH and NAMOS regulations and they were duly revoked by the Health and Safety (Miscellaneous Repeals, Revocations and Amendment) Regulations 2013, making a small contribution to the reduction in health and safety regulations that the Coalition Government was by then demanding.
Land use planning
After the Canvey Island inquiries, HSE became steadily more deeply involved in local planning decisions by virtue of its growing reputation for risk assessment. After 1992, local planning authorities were required by statute to consult HSE on applications for planning consent from companies wanting to store hazardous substances at or above certain specified quantities, which might lead to the creation of a new major hazard site. After 1995, they were required to consult HSE on any developments in the vicinity of existing major hazard establishments and to take HSE’s advice into account when making planning decisions.
In giving its advice HSE had to remain mindful amongst other factors of the views expressed in Chapter 5 of the First Report of the Advisory Committee on Major Hazards (ACMH) and Chapter 4 of their Second Report, where ACMH had said that:
‘the siting of developments should remain a matter for planning authorities to determine, since the safety implications, however important, could not be divorced from other planning considerations… local authorities are well placed to take proper account of the full range of local factors, including safety issues, which are relevant to a planning decision.’
During the 1970s the discovery of oil and gas in the North Sea led to the emergence of a new industrial sector in the UK. The Department of Energy became the government’s sponsor for the new industry, responsible for the award of licences to operators and for regulation of safety. A small cadre of inspectors, known as the Petroleum Engineering Directorate (PED), was formed for the latter purpose within the Department. Like Railways, Mines and Nuclear inspectors, these inspectors tended to be recruited from the companies they were to regulate, on grounds of their specialised knowledge and experience of the industry. (The merits and demerits of this practice and how to avoid the danger of regulatory capture were issues of principle that HSE often found cause to debate.)
The offshore oil and gas industry was particularly hazardous, operating in hostile seas many miles from shore, needing to ferry workers to and from installations by helicopter and accommodate them for days at a time alongside plant and equipment operating at very high pressure and temperatures. Inevitably accidents began to occur. In 1965 the exploration vessel ‘Sea Gem’ capsized some miles off the Humber estuary with the loss of 13 men, in the UK’s first ‘offshore’ disaster.
In terms of loss of life, the worst disaster of the offshore industry anywhere in the world occurred in 1988, some 120 miles north of Aberdeen. A small fire broke out during a maintenance operation on Occidental’s Piper Alpha installation. Failure to control the initial blaze, because pumps were out of action, was followed by massive escapes of hydrocarbons, explosions and fires. The entire installation was destroyed with the loss of 167 lives.
Public outrage demanded an independent investigation and Lord Cullen, senior Scottish law lord, was appointed to conduct a public inquiry. His report criticised the weakness of the Department of Energy’s approach to regulating the industry and recommended radical changes. As a result the PED’s inspectors were transferred to the Health and Safety Executive in 1991 and a new regulatory regime was introduced. In 1992 the Offshore Installations (Safety Case) Regulations were made, requiring operators to submit written evidence of how risks were being managed, by making a case for safety which the regulator would assess, accept or reject. Effectively, offshore oil and gas operations could no longer be carried on without HSE’s permission, so giving the name of ‘permissioning regime’ to the regulatory system. The 1992 regulations were updated in 2005.
Chapter 19: The Construction industry
The regulation of health and safety in the United Kingdom’s construction industry deserves a chapter in its own right. At times of strong economic growth during the late Twentieth Century the industry employed up to a million and a half workers, but it was usually one of the first to shrink during recession. Numbers of reported injuries tended to rise and fall in step with its levels of economic activity.
With around 5% of the UK workforce, but contributing about 10% of Gross Domestic Product, the sector suffers a disproportionate share of fatal and serious injuries and diseases. Construction workers can be exposed to almost every industrial hazard and their chances of suffering fatal or serious injury or disease are much greater than in most other sectors. With relatively few large contractors, a host of small firms (often in subcontracting relationships with main contractors), an unusually high level of self-employment, and a multiplicity of work activities each with potential for causing injury or death, it has always been one of the more difficult sectors to regulate effectively.
Development of Construction Regulations
The first serious attempt to regulate the industry was in 1937 when the scope of Factory Law was extended to works of engineering construction by the Factories Act of that year. However, with progress interrupted by the war, the Building (Safety, Health and Welfare) Regulations were not made until 1948.
In spite of these, by the late 1950s the industry’s poor health and safety performance was attracting mounting criticism. A further attempt was made to improve matters through regulation. After consultation and a public inquiry, the 1948 regulations were replaced in 1961 by the Construction (General Provisions) Regulations and the Construction (Lifting Operations) Regulations. The Chief Inspector Mr T. W. McCullough commented in his Report for 1961 that the new regulations would for the first time provide comprehensive safety requirements for civil engineering work.
The 1961 Regulations remained the standard for more than thirty years. Although focussing narrowly on ‘hardware’ issues such as scaffolding or lifting equipment and associated hazards rather than systems for safe design or managing risks, they were believed to be a significant step forward at the time, but their impact on improving the industry’s woeful safety performance proved disappointing. That year 23,356 accidents were reported on building and civil engineering sites, an increase of 10% over the previous year. 264 of those were fatal. By 1974, fatalities had dropped to 166 but reported accidents had increased to 34,598.
After the introduction of the Health and Safety at Work Act, an important step was taken in 1975 to engage more closely with the industry when the newly established Health and Safety Commission set up a Construction Industry Advisory Committee (known colloquially as ‘CONIAC’). With members nominated by bodies representing employers, trades unions, and professions, the committee was chaired by a senior Inspector and supported by HSE’s Construction National Industry Group (NIG). Good co-operation between members of CONIAC and the NIG’s Inspectors attracted commitment to improving the industry’s performance from important industry stakeholders, such as the Building Employers’ Confederation, the Federation of Master Builders and the relevant Trades Unions.
CONIAC saw a need for a system of regulation better suited to the industry’s diverse structure and contractual practices and recommended introduction of a new legal framework. This should apply pressure throughout the industry’s supply chain by involving clients, making designers responsible for eliminating or at least reducing hazards at the design stage and using the main contractor to influence and control sub-contractors. The law should make both main and sub-contractors responsible for the safety of the self-employed.
It would take a long time and much effort to improve the industry’s safety culture. For example, the attitudes of foremen and workers towards wearing of protective equipment on building sites were relaxed or even dismissive. Hard hats were not commonly worn as it was not then compulsory. The front cover of the Chief Inspector’s annual report for 1985 carried a photograph of a worker whose helmet saved his life when a podger spanner fell on his head from scaffolding. This kind of publicity, and enforcement of Construction (Head Protection) Regulations made in 1989, gradually changed attitudes.
In the meantime the European Commission was developing a Temporary and Mobile Construction Sites Directive. The directive was implemented in the UK in 1994 by the Construction (Design and Management) Regulations 1994 (CDM), embodying the principles recommended by CONIAC.
In 1996 the earlier regulations of 1961 were replaced by the Construction (Health, Safety and Welfare) Regulations. In 2007, revised Construction (Design and Management) Regulations replaced both the CDM regulations of 1994 and those of 1996, finally providing a single code covering both ‘systems’ and ‘hardware’ issues in the industry. The regulations required a project’s client to appoint a Coordinator whose role was to pull together the work of all involved in health and safety aspects of project design and construction.
While the construction industry now had its own code which recognised its diverse contractual arrangements, it still had to comply with the numerous regulations applying to industry in general, including some that were specific to hazardous operations such as entry to confined spaces, diving, or working in compressed air.
Organisation of construction inspection
When the 1961 regulations were made there were no specialist teams of construction Inspectors to enforce them. Instead, Factory Inspectors were expected to spend at least one day per month on building sites in their district. Early in the 1960s some specialist inspectors with civil engineering qualifications were recruited to Headquarters. Later in the decade construction districts were formed throughout the country. Experimentally, some inspectors were recruited directly from the industry to work in these but it proved too limiting in terms of their career development and the policy was soon abandoned.
After the reorganisation of the Factory Inspectorate in 1977, each of its 13 Areas included a construction group alongside groups newly formed for other industrial sectors under the management of an Area Director. A National Industry Group (NIG) was established for construction, based in London. The NIG provided guidance and briefing as to industry standards and priorities for inspection to the construction groups based elsewhere. It also published technical guidance for the industry, usually in consultation with HSE colleagues responsible for developing policy.
In 1993 a new post of Chief Inspector of Construction was created within the Field Operations Division. Its purpose was to sharpen the focus, give Construction Inspectors in the regions more authoritative leadership and represent HSE to the industry at a more senior level. Stuart Nattrass was the first to be appointed, taking over the chairmanship of CONIAC and acting as head of profession for Construction Inspectors. In the early 2000s the post holder assumed line management responsibility for a separate Construction Division operating nation-wide.
Development of construction inspection
Inspection methods had also been evolving over the post-war period. Building operations expected to last more than six weeks were notifiable and this information provided a basis for planning inspections. However, there were no arrangements for liaising and sharing information with Local Authorities’ Building Control Inspectors. The vast numbers of sites to be inspected, many of them small and temporary, presented a perennial challenge to the limited resources of the Factory Inspectorate. By their very nature, building operations are transient activities with different contractors and subcontractors, some self-employed, coming and going every day as work proceeds, often under complex contractual arrangements between the firms involved.
In the early 1980s HSE attempted an experiment by making an informal compact with a large contractor with a good reputation for safety management. Under the terms of the compact, the contractor would commit to an agreed programme of internal monitoring of health and safety performance and submit reports to HSE. The regulator would not carry out planned inspections of the company’s sites but if its reports raised concern HSE reserved the right to intervene. Inspectors would also investigate accidents and respond to any complaints.
It was thought that if such an arrangement were applied generally to large contractors and large projects, it would also embrace their sub-contractors and have the benefit of allowing Inspectors more time to pay attention to smaller firms. However, perhaps because of a failure to consult and engage other stakeholders sufficiently, the experiment had to be abandoned in the face of opposition to what trade unions feared was a step too far towards self-regulation of a hazardous industry.
The industry’s poor health and safety record continued to cause concern. In 1987, for example, there were 109 fatal accidents at building sites and works of engineering construction, out of a total of 259 for all industries and services for which the Inspectorate was responsible. By then some 85 Inspectors were concentrating their efforts on the industry but there were few signs of improvement. The Chief Inspector of Factories secured the agreement of the Executive to increase the cadre to 100 and recommencement of recruitment to the Inspectorate enabled a number of experienced Inspectors to be transferred to construction duties. A nation-wide programme of ‘inspection blitzes’ began, initiated in the Sheffield Area, focussing inspection on high risk activities such as roofing. Inspectors used their notice powers to stop dangerous work when found and, whenever possible, the media were invited along to help publicise the safety message.
In spite of these steps improvements remained frustratingly slow. The challenge facing the Inspectorate was still how best to cover such a broadly based and diverse industry with 100 Inspectors. Other means had to be found to make the most efficient and effective use of the Inspectorate’s limited resources. For example, in an attempt to operate through networks, a series of local briefing seminars for smaller contractors was developed, often conducted in association with the local branch of the Federation of Master Builders or similar trade associations.
The Channel Tunnel
The regulator faced many technological challenges in the late Twentieth century, none less than those presented by construction of the Channel Tunnel Fixed Link which began in 1987. Inspection and enforcement was the responsibility of the UK and French national authorities on either side of the Channel and close co-operation was established between them.
Their work was complicated by an unusual need to respond to a bi-national body, the Channel Tunnel Safety Authority (CTSA). This was an Anglo-French body established in 1986 under the Treaty of Canterbury. Its role was to assure a second Anglo-French body, the Intergovernmental Commission (IGC), that safety measures and practices complied with national or international laws.
The tunnelling operations in this major civil engineering project were conducted by a consortium of several large contractors and were to last almost seven years. The Mines Inspectorate clearly had considerable expertise to offer but the Executive decided that the Factory Inspectorate should take the lead for HSE, supported by Mines Inspectors and other specialists as required. At first, weaknesses in management of the project gave cause for concerns about safety until the consortium introduced some radical managerial changes and improved the training of operatives. Other major challenges such as the prevention of collapse and inundation during construction or a fire fuelled by tons of hydraulic oil on the tunnel boring machines had to be faced. These were overcome with invaluable support from the technical and scientific branches of HSE, avoiding the nightmare of a major disaster involving hundreds of workers underground. However, several lives were sadly lost in preventable accidents that led to prosecutions of the consortium, who were fined heavily in a glare of media publicity.
Lessons learned from the Channel Tunnel experience were published by HSE, who issued guidance on the ‘New Austrian’ tunnelling technique that had been successfully employed in its construction. The lessons learned would assist in future risk management of major civil engineering projects and would guide HSE in other investigations, such as into the 1994 Heathrow tunnel collapse, and in the inspection of other high-profile projects, such as the building of the 2012 Olympic Park and Crossrail.
The Channel Tunnel was formally opened by the Queen and President Mitterand of France in 1994. HSE’s Railway Inspectorate then took over the lead for inspection of railway operations and investigations of incidents, such as the serious train fire that occurred underground in 1996, and for supporting the continuing work of the Channel Tunnel Safety Authority.
Continuing need for good management
While recent evaluation of the effect of the Construction (Design and Management) Regulations and an improving record suggests there is better management of construction health and safety than in the past, the need for sustained good management in this industry is underscored by the countless readily preventable incidents that have occurred over the years. Sadly workers are often injured or killed in these incidents one by one, attracting little media attention or public concern, and thankfully disasters causing multiple fatalities during construction are comparatively rare. But some operations such as tunnelling will always pose serious potential risk to life and limb and catastrophic financial consequences unless they are managed to the highest standards.
One of the more spectacular incidents caused by poor management occurred just before the CDM Regulations came into effect. Miraculously, no one died when in 1994 two railway tunnels collapsed whilst under construction at Heathrow Airport. A sprayed concrete lining method was being used, the New Austrian Tunnelling Method (NATM). This had recently been successfully employed in the Channel Tunnel and other European projects.
The tunnel collapse cost £100 million to rectify and was believed to be Europe’s biggest civil engineering failure since the Second World War. The airport’s central road system and underground railway narrowly escaped disastrous disruption. The incident caused great concern, as the construction method was still relatively new to the UK and was being employed in building the London Underground Jubilee Line Extension. HSE proposed to the Secretary of State that it should carry out a review of NATM and investigate the incident. As the regulator had itself been involved in evaluation of a pilot tunnel at Heathrow, a degree of independence was introduced by the creation of a supervisory Board chaired by the Chief Inspector of Construction, including two independent experts. HSE also obtained specialist assistance from consulting engineers.
While the review and investigation were in progress HSE insisted that use of the method be suspended on the Jubilee Line Extension until the client and contractors could demonstrate that they had taken account of emerging findings. This action was highly charged politically, as completion of the Jubilee Line Extension in time for the Millennium celebrations at the Dome in Greenwich was critical to their success.
Fortunately the investigation was able to report swiftly. It found serious weaknesses in certain aspects of the project’s management, particularly its quality control and the use and interpretation of data acquired from monitoring the performance of the structure during construction. The main contractor and the monitoring contractor were prosecuted and heavily fined. Together with a report from the Institution of Civil Engineers, HSE’s report on the New Austrian Tunnelling Method became the standard reference for future work involving sprayed concrete linings in the UK, reinforcing the need for very high levels of management and technical competence.
It is only right to point out that excellent examples exist of successful completion of major works without loss of life, such as the Queen Elizabeth Bridge over the Thames at Dartford (1991) and the London 2012 Olympics project, which clearly demonstrate what can be achieved by good management. By 2013 HSE was able to report that the number of fatal accidents on UK building sites had dropped to 39 out of a total for all industries of 148, a significant improvement over the earlier figures mentioned, though still high compared with other sectors.
Chapter 20: Towards the Millennium
Beyond the UK, political factors were beginning to obscure the simplicity of its goal-setting approach to health and safety law. After the European Union adopted ‘qualified majority voting’, like other Member States the United Kingdom had no choice but to implement agreed Directives in full. As noted earlier, the Framework and its daughter Directives was implemented in the UK by the so-called ‘Six Pack’. A succession of other directives soon followed. Developed by lawyers in the European Commission, these were adopted by the Council of Ministers on a seemingly piecemeal basis, hazard by hazard, lacking an overall guiding strategy and gradually forming a dense thicket of new laws and explanatory guidance. For example, regulations implementing the European Directive on classification, labelling and packaging of hazardous materials required annual updating and generated volumes of new paperwork for industry year on year.
Deregulation and a Review of Regulation, 1992-94
It was therefore not surprising that a period of deregulation followed the return of another Conservative Government in 1989. Ministers directed the Health and Safety Commission to carry out a review of existing health and safety law to examine whether it was still relevant and necessary. Their intention was to reduce regulatory burdens on businesses, particularly small firms.
The review began in 1992. Two years later it concluded that while there was wide support for the 1974 Act’s new approach, much of health and safety law was ‘too voluminous, complicated and fragmented’, a story that would have been only too familiar to the consolidators of Factory law in 1878, 1901, 1937 and 1961.
Mr (later Sir) Frank Davies, a prominent businessman, was appointed Chairman of the Health and Safety Commission in 1993. Parliament passed a Deregulation and Contracting Out Act in 1994 and the review’s findings were also published that year, recommending removal of 100 sets of regulations and seven pieces of primary legislation and simplification of many of the 340 requirements for associated administrative paperwork. HSE set about the necessary reforms in a programme that took several years to complete. Even so, it would not suffice to avert another round of deregulation in 2011.
Standards developed by engineers are often buttresses to regulations. Over the last 100 years the making of standards for health and safety at work, whether for machinery, equipment or management systems, has become an important element in the regulatory framework. While it is not directly the responsibility of the regulator, Inspectors and their scientific and engineering specialist colleagues have played an important part in the work of the committees of British Standards, European Standards and International Standards making organisations.
In Britain, an Engineering Standards Committee was formed in London in 1901, becoming the British Engineering Standards Association in 1918, and adopting the name British Standards Institution in 1931 after the grant of a Royal Charter in 1929. In 1998 a revision of the Charter enabled the Institution to extend its scope and its name changed again, to BSI Group.
It was seen as important to achieve consistency and a common understanding of the purpose of standards, for example for the purposes of trading products in a common market, where a national health and safety standard could easily become a non-tariff barrier to trade. As a result, common principles were agreed and by the late 20th Century were to be found in International Standards such as OHSAS 18001 (occupational health and safety), ISO 14001 (environment) and ISO 9001(quality).
Growing sophistication of occupational health and safety
The development of such standards would not have been possible without close study of the methods of leading companies and how they managed to achieve best practice. Subjects like ergonomics had long been seen as relevant to safe and healthy working, with application to solution of physical problems such as the design of seating, manual handling methods or to the better understanding of the relationship between man and machine. The 1980s and 1990s witnessed an explosive growth of interest in the psychology of health and safety and its relevance to the causation and prevention of unsafe acts.
Alongside expert discussions about risk assessment, conferences began discussing issues such as behavioural science, human error, human and organisational factors, and how companies striving for the Holy Grail of ‘continuous improvement’ should go about measuring how well they were ‘managing’ occupational health and safety.
With increasing numbers of specialists and consultants claiming expertise in how to manage health and safety and the subject beginning to attract the attention of academics, the regulator saw its role as leading the debate. In 1991 HSE published ‘Successful Health and Safety Management’ which was based on knowledge gained from case studies conducted by the regulator over a number of years. The methods set out in this guidance were soon widely acknowledged as helpful and effective in raising performance. Whilst it had no legal status (unlike an Approved Code of Practice) it became an iconic document, regarded as an authoritative accompaniment to the Management of Health and Safety at Work Regulations.
Interest in corporate governance was stimulated by the publication of ‘Internal control: Guidance for directors on the combined code’ (the Turnbull Report) published in 1999 by the Institute of Chartered Accountants in England and Wales. HSE began emphasising the importance of visible leadership of health and safety by senior managers, with companies ideally appointing a champion on their boards of directors. Supply chain management was another area where it was believed companies could influence the health and safety performance of their suppliers and subcontractors.
Open Government, Freedom of Information and ‘Whistle-blowing’
Since the passing of the 1974 Act Inspectors had been required (under Section 28) to provide certain information on health and safety, including enforcement. Their practice was to advise safety representatives both orally and in writing about any enforcement action they proposed to take.
After the General Election of 1997, HSE reacted positively to the New Labour Government’s ‘open government’ policies by voluntarily introducing systems for disclosure of information. In spite of that, when the Freedom of Information Act of 2000 created a statutory right of access to information held by public authorities HSE found itself deluged with inquiries from members of the public, trade unions, lawyers and others. Today it has the unenviable distinction of being the authority that responds to the greatest number of inquiries annually, which speaks volumes about the continuing high level of interest in health and safety issues.
During the final years of the 20th Century a group called Public Concern at Work campaigned to secure legal protection for employees who had become so concerned about conditions at their workplace that they felt obliged to ‘blow the whistle’ and inform the authorities. Eventually a Private Members Bill was passed as the Public Interest and Disclosure Act of 1998, intended to ensure that ‘whistle-blowers’ need have no fear of retribution.
Campaigners, trainers, professional institutions, trade unions
Within the limits of their resources Inspectors worked closely with other bodies dedicated to improvement of health and safety at work, such as the Royal Society for the Prevention of Accidents (RoSPA), the many local safety groups (latterly Safety Groups UK) supported by RoSPA, and professional institutions representing health and safety practitioners such as the British Safety Council (BSC), the Institution of Occupational Health and Safety (IOSH), the International Institute for Risk and Safety Management (IIRSM) and the Faculty of Occupational Medicine. Support was also given to bodies such as the National Examination Board for Occupational Safety and Health (NEBOSH) and the Hazards Forum, amongst many others.
The contributions made to health and safety by all these organisations and their members have been invaluable. By 2013, about 50,000 health and safety practitioners were members of one of the professional associations in the UK, usually employed in companies, public bodies or as consultants.
Recognition of the profession and its importance to Britain’s largest industrial corporations was raised considerably in the late 20th Century by the leadership of charismatic people such as Sir John Harvey Jones, chairman of ICI, and James Tye, Director of the British Safety Council. Both assisted HSE in the promotion of ‘Successful Health and safety management’. The wise and vastly knowledgeable Trevor Kletz, ICI’s first technical director and later a Professor at Loughborough University, made an outstanding contribution to the management of process safety and accident prevention. His lectures and prolific authorship of books about accident prevention became legendary.
Moreover, since the introduction of the 1974 Act the Trades Union Congress and member trade unions have overseen and provided training for countless thousands of safety representatives in every corner of industry. They all play a vital role in the national health and safety system.
‘The Millennium Bug’
As the new Millennium drew closer, consultants with expertise in computer systems were predicting failures at the turn of the year which would have damaging implications for computer controlled processes and machinery, possibly leading to disastrous consequences. These fears were taken seriously by regulators across the world, including the UK, where HSE conducted research and published technical guidance about how to avoid the consequences of ‘the Millennium Bug’. However, in the event the fears proved largely groundless.
Chapter 21: Gathering Clouds
Health and safety at work, and the national regulator’s standing both at home and abroad, had reached a high water mark as the new Century approached. In modern marketing parlance, a ‘brand’ had been firmly established. Senior officials were frequently invited to perform television and radio interviews. Together with the fast developing science of risk assessment, the management of occupational health and safety had gained an unprecedented degree of sophistication. The health and safety profession was growing vigorously, both in numbers and status. Official statistics showed serious and fatal injuries at an all-time low. The sunlit uplands beckoned.
But, and not for the first time, there were ominous indications in political quarters that some believed health and safety was being overdone, to the detriment of business and the country’s economic growth. Clouds began to gather over the horizon.
Sir Frank Davies, who had made prodigious efforts in reaching out to small firms and supporting campaigns such as ‘Good Health is Good Business’, was succeeded as Chairman of the Health and Safety Commission in October 1999 by the TUC’s senior economist, Mr (later Sir) Bill Callaghan. That month a disastrous train crash occurred and the 21st Century dawned under the dark shadow of a public inquiry into 31 deaths.
‘Revitalising health and safety’
The Millennium was also marked by publication of a novel government strategy for occupational health and safety. Noting that much the same numbers of people were still being injured at work as in the early 1990s, ‘Revitalising Health and Safety’ was launched by the Labour Government in 2000, setting the regulator targets for improvement over the next decade. In response, the Commission announced nine ‘priority programmes’ covering falls from height, workplace transport, musculoskeletal disorders, work-related stress, agriculture, construction, health services, slips and trips and, finally, ‘Government setting an example’.
Yet an unfortunate impression was beginning to grow of a welter of ‘red tape’ to do with health and safety that was strangling business, even leading to accusations of ‘gold-plating’ by officials in over-implementation of directives. While this was generally untrue there was no smoke without fire. The European Commission was developing proposals for Registration, Evaluation, Authorisation and Restriction of Chemicals (‘REACH’) and when completed in 2007 this European regulation had ballooned to some 800 pages. Together with a Classification, Labelling and Packaging Regulation (CLP), the regulations were ‘direct-acting’ on Member States, meaning that although HSE did not need to transpose them, British industry was bound to comply.
Fatal explosion at ICL Plastics, 2004
The collapse of a four-storey factory building in Glasgow caused by a liquefied petroleum gas (LPG) explosion in 2004 killed nine and injured thirty three workers, the worst industrial disaster to have occurred for a number of years. A public inquiry led by Lord Gill concluded that responsibility lay with the operating companies occupying the building, who were subsequently convicted and heavily fined for health and safety offences.
However the judge also criticised HSE for failure to follow up its own specialists’ advice about underground gas pipelines given to the company years earlier, that might well have prevented the disaster. HSE pledged to learn lessons and set about working with the LPG supply industry to develop a risk-based, prioritised replacement programme for underground metal pipelines, to be completed by the end of 2015 together with certain changes in regulation.
Disasters inevitably raise questions about regulation and shake confidence in its effectiveness. In early 2004 the fate of 23 Chinese cockle pickers was sealed when they were trapped at night by the inrushing tide on the treacherous sands of Morecambe Bay, exposing shockingly bad employment practices and heartless exploitation by rogue gangmasters of poorly paid illegal immigrants, desperate for work. The gangmasters responsible for this tragedy were sent to prison for manslaughter and breaches of immigration laws. One was jailed for 14 years and ordered to be deported at the end of his sentence.
This twilight world seemed to have escaped regulatory attention, although arguably health and safety law applied and could have been enforced. Public outrage led to the passing of the Gangmasters Licensing Act 2004 and formation of a Gangmasters Licensing Authority (GLA) to regulate contractors supplying labour to industries such as agriculture, forestry, horticulture, shellfish gathering, food processing and packaging. HSE contributed advice in ‘Practical Guidelines for safe working in tidal areas and estuaries’.
Changes in the industrial landscape
A comprehensive assessment of achievements was published in 2004 by the Commission and Executive jointly, in a document called ‘Thirty years on and looking forward’. This asserted that the system introduced by the 1974 Act was still relevant in spite of the economic, social and technological changes that had occurred since then, and that the regulator’s mission remained ‘to protect people’s health and safety by ensuring that risks in the changing workplace are properly controlled… we have one of the best safety records in Europe, and our success stems from our approach of sensible health and safety, managing risks and protecting people at the modern world of work’.
The document reported that since 1974, when the working population had numbered some 22 million people, over three million jobs in manufacturing had disappeared (a decline of over 50%) while the service sector had grown from employing less than two-thirds of the workforce to more than three quarters.
At the beginning of 2003, 99% of firms were classified as small (having less than 50 employees) and only 0.2% employed more than 250. Nearly 60% of the workforce (now some 25 million) was employed in small and medium sized enterprises and 71% had no employees at all.
Part-time workers now made up a quarter of the workforce, compared to a sixth in the mid-1970s. Half of all employees were women (two-fifths in the 1970s). There had been a very substantial increase in temporary, agency and contract work, sustained by an inflow of migrant workers from abroad.
Whereas just over 2 million workers were self-employed in 1974, by 2003 they numbered around 3.75 million. Significantly for the tripartite regulatory system set up by the 1974 Act, trade union membership had fallen from over 50% of the workforce to less than 30%, which began raising political issues about representation.
In 1973 there had been 270 fatalities in construction alone out of a total of almost 500 for all industrial sectors. The following year construction fatalities had surprisingly dropped to 148. Fluctuations year on year were to be expected but by 2003 a total of around 250 fatalities in all industries was reported, so overall performance had clearly improved dramatically.
Yet some seemingly intractable problems remained to be solved. Falls from height accounted for 67 fatal accidents in 2003. In 2005 the Work at Height Regulations (WAHR) were made, implementing the European Temporary Work at Height Directive (2001/45/EC). Some argued that the regulations were unnecessary, given the general duties in the 1974 Act, and a false rumour was spread that ladders had been banned. But by 2008 there were only 35 fatal falls, seeming to indicate that the regulations had succeeded in stimulating safer working practices.
Enforcing restrictions on the hours of employment of women, young persons and children had not been given high priority after 1975 and some restrictions had been removed, seen as no longer relevant to modern working patterns. However, when new regulations had to be made in 1998 to implement the European Working Time Directive, which set a maximum of 48 hours per week for all workers, HSE was made responsible for enforcement of restrictions on the working week, night working and health assessments for night work.
The Hampton Review, 2004
In 2004 Chancellor Gordon Brown commissioned a review by Sir Philip Hampton into the burden of regulation on business. His report ‘Reducing administrative burdens: effective inspection and enforcement’ was published together with the Chancellor’s budget in March 2005. The report aimed inter alia at reducing the number of regulatory agencies; its recommendations included HSE taking on the functions of the Adventure Activities Licensing Authority (AALA), the Gangmasters Licensing Authority (GLA) and inspection functions of the Coal Authority.
The Chancellor announced that “The best practice risk-based regulation now means more inspection only where there is more risk and a light and limited touch where there is less risk.” This was to become a continuing political theme over the next decade, and the national health and safety regulator would not be allowed to escape inquisition by the guardians of ‘better regulation’, even though the principles succinctly enunciated by the Chancellor had guided its work for the past thirty years.
The explosion and fire at Buncefield, 2005
In 2005 a massive explosion during a tank filling operation at a fuel oil storage depot at Buncefield, Hemel Hempstead was heard as far away as the Netherlands, and was followed by tank fires and explosions throughout the extensive site. Miraculously no one was killed, though more than fifty people were injured and many others had to be evacuated from their homes and businesses, dozens of which were badly damaged.
This major incident was so severe that it fell within criteria for notification to the European Commission. After a long drawn out investigation and several interim reports by the HSE and Environment Agency acting in their role as ‘joint competent authorities’, a final report was published in 2008. Five companies were eventually prosecuted and heavily fined, while an urgent nationwide programme of inspection of similar sites was carried out by the regulators.
Targets and strategies
The new Century’s first decade was also remarkable for an outbreak of strategic planning. At the Millennium the New Labour Government had begun setting ambitious targets for delivery of its policies and it became fashionable for Departments to publish strategies for policy delivery. Health and safety was no exception. National targets for improving health and safety at work over 10 years were set out in documents published in 2000 called ‘Revitalising health and safety at work’ and ‘Securing health together’. The targets set for the HSC by Ministers were a 30% reduction in working days lost per 100,000 workers through illness or injury, a 20% reduction in the incidence rate of work-related ill-health, and a 10% reduction in the incidence rate of work-related fatal and major injuries. By now the European Commission had also published its own, broadly consistent strategic objectives for health and safety and in 2004 these were rolled forward to cover the period 2005-10.
Occupational health was climbing up the agenda again and was included in an ‘overarching’ strategy, ‘Health, work and well-being – caring for our future’, announced in 2005 by the Department for Work and Pensions, the Department for Health and the HSC. Dame Carol Black was appointed as National Director with the aim of co-ordinating government efforts to improve health, a strategy first announced in ‘Our healthier nation’. A review of the working population’s health entitled ‘Working for a healthier tomorrow’, was published in 2008.
In spite of this welter of strategic activity, the HSE reported in its business plan for 2008/9 that the picture of target achievement was ‘mixed’. With rates stubbornly remaining at the same levels as in 2004, more needed to be done to meet the targets set for ill health and lost working days. In 2009, against a difficult background of global financial collapse and economic recession, the HSE launched yet another strategy, ‘The health and safety of Great Britain: Be part of the solution’, aimed at developing ‘renewed momentum to improve health and safety performance’. This initiative included a ‘Pledge Forum’ in which companies were encouraged to participate and demonstrate their commitment to workplace health and safety by signing an ‘HSE Safety Pledge’.
Demise of the Health and Safety Commission, 2008
By 2005, after thirty years of existence the Health and Safety Commission had come to be seen in Whitehall as a rather old-fashioned, outmoded and superfluous instrument of government. Most of the other tripartite institutions of the ‘corporate state’ created during the 1970s had already been dismantled. Within Whitehall, the relationship and separation of functions between the Commission and Executive and Government Ministers had never been properly understood or accepted. Modernisers suggested that the existence of two separate statutory bodies for health and safety was confusing ‘stakeholders’ and questioned the need to maintain them.
Reading the writing on the wall, in 2006 the Commission began considering how it should recommend its own demise whilst ensuring that a national regulatory body for occupational safety and health remained, retaining some independence at arm’s length from Ministers. After public consultation the Commission merged with its former executive arm on 1 April 2008, and a new body emerged to be known in future simply as the Health and Safety Executive, overseen more conventionally by a Board appointed by and reporting to Ministers, comprising a Chair and several non-executive directors. Day to day management of staff and operations was to be conducted by a Senior Management Team of civil servants headed by a Chief Executive, in the modern form that had been adopted by other Whitehall agencies.
In the Machiavellian style of Whitehall, the two bodies that had steered the regulatory progress over the previous three decades had been quietly abolished. However, a national health and safety authority had survived, sensibly retaining the established and widely recognised brand name of the ‘Health and Safety Executive’, although the ‘trinity’ that had been the statutory Executive disappeared together with the Commission.
The handicap of running a split headquarters since 1982 ended in 2006, when a new headquarters building, Redgrave Court, in Bootle, Merseyside was officially opened. HSE’s Chief Executive and London policy staff were relocated there alongside their operational colleagues, while a small office was retained in Westminster. Arguably, lack of a significant presence in London might weaken any influence over policy making previously enjoyed by HSE’s predecessor bodies, derived from their close proximity to Ministers and the Departmental officials with whom they had to interact. It remains to be seen whether the regulator’s influence in Whitehall is lessened in the longer term, and whether the protection of the regulatory system by a separate independent Commission had been important.
Directors’ duties, Corporate Manslaughter and ‘Leadership’
The Health and Safety at Work Act is a criminal statute and certain kinds of offences committed by individual company officers can and do lead to jail sentences as well as significant fines. In 2003, HSE prosecuted 17 directors for offences under the Act and 11 were convicted. Cases for manslaughter could also be taken and in 2005 four directors were convicted and imprisoned.
Tougher penalties for breaking health and safety law were introduced by the Health and Safety (Offences) Act 2008, for example increasing the maximum fine in the Magistrate’s Courts to £20,000, and making some offences previously triable only in the lower courts triable in Crown Courts. Unlimited fines could already be imposed in the higher courts and certain offences attracted custodial sentences for individuals. But there had long been a body of opinion amongst trade unions, victims’ organisations and other activists that companies should be faced by a more severe penalty than a simple health and safety conviction, if found guilty of gross negligence causing death.
After the Cross-Channel Ferry ‘Herald of Free Enterprise’ capsized off Zeebrugge in 1987 with the loss of 193 lives, the operating company was prosecuted for corporate manslaughter. The failure of that prosecution resulted in a long campaign to strengthen the law, culminating in the passing of the Corporate Manslaughter and Corporate Homicide Act in 2007. Previously a company’s liability for manslaughter depended on the conduct of a senior person, which was usually difficult to prove. For example, between 1992 and 2004 there were only 34 prosecutions for work-related manslaughter and these resulted in just six convictions.
The new Act came into force in 2008, enabling companies to be convicted for corporate manslaughter if found guilty of serious management failures resulting in a gross breach of a duty of care and, if so, imposition of unlimited fines by the courts. Government bodies could also face an unlimited fine for the first time if found to have caused death due to corporate health and safety failures.
In spite of general support for this measure, some believed that it was a negative step, unnecessarily involving the police in investigating fatalities at work alongside a competent health and safety regulator already endowed with the necessary investigative powers, while higher courts could already impose unlimited fines or custodial sentences for serious offences under the 1974 Act. In fact however, since 2006 investigations of fatalities had already involved the police with several regulatory authorities, including HSE, under a Work-related Deaths Protocol, and collaboration in investigations seemed to be working well.
It is too early to judge whether this Act, which is not strictly speaking health and safety law, has made a positive contribution to health and safety performance. By 2013 there had been only three convictions for the new offence of corporate manslaughter but a number of cases were pending.
In response to continuing demands from some quarters for legislation covering directors’ duties, which were still resisted by Ministers, HSE began placing emphasis on ‘leadership’. In 2009 ‘Leading Health and Safety at Work’, a guidance leaflet on directors’ duties was published jointly by HSE and the Institute of Directors. In 2013 it was revised and republished as INDG 417 (rev) under the same title, available to download from HSE’s web site.
Corporate Social Responsibility
During the early years of the century the New labour Government considered making the provision of information about health and safety performance a statutory requirement under the Companies Act but the Chancellor Gordon Brown dropped the proposal in the face of business resistance. However, some larger companies wishing to protect their brands and reputations began publishing health and safety information in their annual reports voluntarily, adopting the principles of ‘Corporate Social Responsibility’. This was essentially a ‘third way’ between the free market and state regulation, enabling companies to manage risk and reputation and demonstrate their sound stewardship of matters important to the public such as protection of the environment and health and safety.
Demands for radical changes in regulatory practice
After two hundred years of generally progressive improvement in occupational health and safety, the legitimacy of health and safety regulation was beginning to be questioned in some quarters. This was not the future that Lord Robens’ committee had envisaged in 1972. Neither had the Health and Safety Commission when it published ‘Thirty years on and looking forward’ in 2004, which considered the development of health and safety in Great Britain, taking an optimistic view of the future. That year the Commission also launched its ‘Strategy for workplace health and safety to 2010 and beyond’.
The Commission’s demise in 2008 was not predicted in those documents but would prove insufficient to satisfy political demands for change. It was rumoured before the General Election of 2010 that if elected, a Conservative Government would be determined to release business from what it perceived to have become a regulatory stranglehold, choking the country’s economic growth. Some politicians strongly believed that officials tended to ‘gold plate’ (over-implement) the requirements of European directives. They were also expressing concerns about other issues they perceived as harmful, such as society’s growing aversion to risk, the so-called ‘compensation culture’ and allegedly disproportionate enforcement of rules by overzealous officials.
Chapter 22: ‘Common Sense, Common Safety’
There had been signs before 2010 that the flood tide that had carried health and safety regulation forward since 1975 was beginning to slacken. The Election was a turning point, ushering in a novel Coalition Government of Liberal Democrats and Conservatives and a new era of radical change in regulatory practice.
Notwithstanding the generally accepted attribution of the global financial disaster of 2007-8 to weak regulation, a series of reviews was soon set in train with the aim of reducing burdens on business believed to have been imposed by over-regulation in general, and excessive health and safety regulation in particular.
‘Common sense, common safety’ – Lord Young’s review, 2010
Thus it came as no surprise when one of the first steps taken by the Coalition Government was to commission a review of health and safety at work. In June 2010 the Prime Minister David Cameron appointed the Rt Hon Lord Young of Graffham as ‘adviser to the Prime Minister on health and safety law and practice’. Lord Young immediately set about a wide review of health and safety laws and the perceived growth of a ‘compensation culture’.
His report ‘Common sense, common safety’ was published in October 2010 with a Foreword by the Prime Minister. It recommended improving public perception of health and safety; ensuring that it was taken seriously both by employers and the general public; reducing the burden of bureaucracy on businesses; placing restrictions on advertising for ‘no win, no fee’ compensation claims; and generally overhauling the way personal injury claims were being handled. Lord Young also recommended concentrating health and safety enforcement activity on high risk areas and serious breaches of health and safety rules, and simplifying health and safety legislation and guidance.
‘Good health and safety, good for everyone’, 2011
Accepting Lord Young’s recommendations in full, the Government responded in March 2011 by publishing its plans for reform in ‘Good health and safety, good for everyone’. Ministers declared that they wanted a ‘lighter touch’ approach to health and safety at work. They ‘believed that good health and safety was important, but the burden of excessive health and safety rules and regulations on business has become too great’.
For some time HSE had been working up proposals for an Occupational Safety and Health Consultants Register (‘OHSCR’) with the help of professional institutions. Lord Young’s proposals included setting up such a register to ensure that businesses had access to competent advice. A database was launched by HSE in 2011 and soon some 2,000 or more qualified consultants had joined the register.
In spite of having won general approval from the Government’s Better Regulation Unit of its evidence-based approach to regulation-making, like other agencies HSE now had to face the ‘Red Tape Challenge’ and account for itself at a ministerial ‘Star Chamber’. As a step towards meeting Ministers’ wishes for simplification of health and safety law and guidance, early in 2011 ‘Health and Safety Made Simple ‘was published on HSE’s web site to help small and medium-sized businesses achieve at least a basic level of compliance.
‘Reclaiming health and safety for all’ – the Löfstedt review, 2011
The major review of regulations that had been carried out by HSE in 1994, followed by a programme of revision over several years, no longer carried weight. Government pressure for further reform was maintained when in March 2011 the Employment Minister appointed Professor Ragnar Löfstedt to carry out an independent review of some 200 sets of health and safety regulations and 50 Approved Codes of Practice (ACoPs).
Professor Löfstedt was supported by an advisory panel including representatives of employees and employers and two MPs. Following up Lord Young’s report and working on the principle that regulation should be based on ‘risk’ rather than ‘hazard’ (a principle followed by HSE since 1975), after taking evidence for several months from interested parties the Professor published his report ‘Reclaiming health and safety for all’ in November 2011.
Ministers accepted the report’s numerous recommendations in their entirety and set HSE the daunting task of implementing them in full over a very short period. HSE was bound to comply, particularly as many agreed that the Löfstedt review had identified flaws in the regulatory framework that needed correction.
A speech in 2012 by the Prime Minister referred to a need to slay the health and safety ‘monster’, describing health and safety legislation as ‘an albatross around the neck of British businesses’. In the face of a gale sails have to be trimmed. In 2013 the Health and Safety (Miscellaneous Repeals, Revocations and Amendments) Regulations were duly made, revoking several laws judged to be redundant or out of date, including one Act and twelve statutory instruments. The criterion for reporting accidents causing injury was changed from three to seven days’ absence from work by amendment of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). HSE was relieved of the task of approving first aid training and qualifications under the 1981 First Aid Regulations; the approved code of practice for first aid was withdrawn and replaced by guidance. The 1988 Docks Regulations were to be revoked in 2014 and replaced by a simpler code of practice.
(Progress reports on implementation of ‘Reclaiming health and safety for all’ and ‘Common Sense, Common Safety’ can be found on the Department for Work and Pensions’ web site).
Perhaps more significantly for workers, amongst other things the Löfstedt review reinforced government’s concerns about society’s perceived risk aversion, the so-called ‘compensation culture’ and the effect of strict liability in civil law on claims for work-related injuries. Section 69 of the Enterprise and Regulatory Reform Act (ERRA) passed by Parliament in 2013 amended Section 47 of the Health and Safety at Work etc. Act 1974 so that future claims against employers for compensation for injuries at work could only be made when negligence could be proved. This effectively set the clock back to where it had been before the passing of the Workmen’s Compensation Act of 1897. However HSE remained responsible for enforcement of the Employers’ Liability (Compulsory Insurance) Act 1969.
Changes in inspection and enforcement policies
The Coalition Government was determined that health and safety enforcement should be concentrated on higher risks and serious breaches of health and safety rules. In administering the 1974 Act HSE had adhered to a longstanding belief that the principle purpose of health and safety law was the prevention of harm, and that Inspectors should exercise their judgment (‘discretion’) in deciding how best to achieve that purpose. Enforcement was not the only means of doing so, indeed it was regarded as a last resort. In the 1990s HSE had developed a decision-making process (the ‘Enforcement Management Model’) to help Inspectors in the exercise of discretion, based on the principle that enforcement action should be proportional to risks and the seriousness of the breach. This model had been shared with Local Authorities whose officers had also long been expected to exercise discretion in deciding when to investigate or take appropriate enforcement action, following principles laid down in the Health and Safety Commission’s enforcement policy statement, the New Labour Government’s ‘Regulators’ Compliance Code’ issued in 2004 and similar principles required under the Legislative and Regulatory Reform Act 2006. The aim as always was to focus on those areas where risks were the greatest.
Nevertheless Employment Ministers of the Coalition Government ordered a sharp reduction of one third in the number of inspections of premises thought to be of ‘low risk’. In consequence, a startling 44% reduction in planned and reactive inspections was reported in 2012 by Local Authorities, with one in five of them admitting to conducting no planned inspections at all. HSE, whose risk rating system still underpinned its planning, cut its own planned inspections by the required one third, controversially deciding to exclude certain sectors from its programme, such as agriculture and quarries with their history of serious health and safety problems.
‘Better Regulation’ and a Regulators Compliance Code
HSE’s Enforcement Policy Statement, first issued by the Commission in the 1990s, had been revised and re-issued in 2009 in the light of the Regulators’ Compliance Code. Based on the principles of transparency, proportionality, consistency, targeting and accountability, it was shared with Local Authorities who were expected to abide by those principles when enforcing health and safety law. In 2013 the Better Regulation Delivery Office (BRDO) reviewed the Regulators’ Compliance Code and was told that business had found its ‘delivery’ inconsistent between authorities. BRDO decided that the Code had failed to change regulatory culture and practice and proposed to replace it with a statutory Regulators’ Code that would come into effect in 2014. The principles would remain much the same but authorities would be under a duty to comply.
In 2013 HSE published a ‘National Local Authority Enforcement Code – Health and Safety at Work, England, Scotland and Wales’ which set out in detail a risk-based and proportionate approach to be followed in their future planning and decision making.
European ‘red tape’ reviews
Another review by a ‘Business Task Force’ appointed by the Prime Minister in 2013 led to a report entitled ‘Cut EU red tape’ which identified ‘Problematic, poorly understood and burdensome European rules’ that it believed slowed production, job creation, sales and innovation and left Europe lagging behind its trading rivals. Calling for reform or amendments to 30 pieces of EU legislation, it recommended that a set of principles be applied in order to ensure rigorous assessment of EU legislation. Any measures proposed by the European Commission should be risk based and proportionate and ‘low-risk’ businesses should not be required to keep written risk assessments. The report listed several EU Directives to do with health and safety which the Task Force believed should be reviewed, such as for display screens and chemical agents. It also recommended exempting ‘low risk’ firms from keeping written risk assessments. (Firms employing fewer than 5 were already exempt.)
There were signs that the European Commission shared this view. Its strategy for health and safety 2005-2009 had not been rolled forward and work had been halted on directives for muscular skeletal disorders and carcinogens while its ‘European regulatory reform and fitness programme’ (REFIT) was being conducted. This was a review of all European legislation, not simply of health and safety law, with the same intention of achieving a lighter regulatory touch and reducing administrative burdens on business.
Challenging regulators’ actions
Regulators were now between a rock and a hard place. There had been a growing trend in recent years for regulatory failure to be blamed when disasters occurred but ironically the authorities were also likely to find themselves ‘in the dock’ if they were thought to be ‘going over the top’. Whereas ‘Beyond compliance’ had become a mantra for some leading companies in the late Twentieth Century, with some encouragement from HSE, the regulator now needed to avoid giving any impression that it was encouraging ‘over-compliance’. In 2012 HSE set up an ‘Independent Regulatory Challenge Panel’ to examine complaints that formal advice relating to health and safety compliance given by HSE’s or a Local Authority’s inspectors was incorrect or went beyond what was required to control risk. The panel’s findings can be found on HSE’s web site.
The closure of ‘Infoline’
As mentioned before, the regulator had a statutory duty to provide information and advice. During the 1990s requests for advice had been rapidly increasing and HSE decided to set up a call-centre service with staff specially trained in answering enquiries. Based in Caerphilly, South Wales, ‘Infoline’ was launched in 1996. By 2004 it was receiving a quarter of a million enquiries every year, of which 85% were from small and medium sized enterprises. When on-line accident reporting arrangements were introduced in 2011, ‘Infoline’ was closed and HSE directed enquirers to the copious information by then available on its web site.
By the time of the General Election in 2010 the high profile achieved for health and safety since 1975 had become something of a two-edged sword. Sections of the tabloid press and stand-up comedians had taken to mocking what they derided as ‘elf ‘n safety’, peddling tales about the banning of ladders, cheese rolling, hanging baskets and other nonsense, bans that the media suggested were being made by ‘jobsworths’ on grounds of health and safety. This mischief dangerously fuelled a belief in some political quarters that society had become too risk-averse and that health and safety was out of control.
Certainly, health and safety was often being used as a cloak to disguise ulterior motives for prohibiting an activity. In 2012 HSE set up an independent ‘Myth Busters Challenge Panel’ to scrutinise any decisions brought to its attention and judge whether they were sensible and proportionate to risk. If not, the ‘myth’ was de-bunked on HSE’s web site. By 2013 the Panel had examined some 250 cases.
‘Managing health and safety’
Following recommendations in the Löfstedt Report, in 2013 HSE controversially withdrew the Approved Code of Practice for the Management of Health and Safety at Work Regulations, and guidance on investigating accidents and benchmarking. The widely respected but outdated ‘Successful Health and Safety Management’ was replaced by a web based package called ‘Managing for Health and Safety’ which aimed to explain ‘systems’ and ‘behavioural’ management in simple terms.
‘Fee for Intervention’
Many public authorities had begun charging for some regulatory services as budgets became squeezed. For a number of years HSE had been charging companies for time spent on certain resource-intensive tasks, such as licensing nuclear installations, assessment of safety reports for major hazard sites or assessment of safety cases for offshore installations. Costs of prosecutions were generally recovered and many of its guidance publications were priced for sale. However HSE had never charged companies for its Field Operations Directorate’s planned inspections of workplaces or investigations of accidents and complaints.
Ministers wanted to make sure that organisations found breaking the law, so gaining an unfair competitive advantage over their competitors, paid the full costs of HSE’s inspections and investigations. After a period of consultation and trial, in 2012 HSE introduced a ‘Fee for Intervention’ cost recovery scheme based on a charge of £124 per hour. Under this scheme, its Inspectors had to decide whether a ‘material breach’ of law had occurred and give the offending duty holder notice in writing, explaining reasons for their opinion before invoicing the company. Procedures were set up for resolving disputes.
The scheme raised £5.5 million in its first year. It is perhaps too early to judge the scheme’s impact on compliance, but concerns were reported by trade unions that firms were no longer seeking advice from the regulator for fear of incurring a charge.
Ministerial responsibility for health and safety at work
Ministers remain ultimately responsible to Parliament for success or failure in health and safety at work. As the late John Locke once said to a Minister, ‘We’ll know how good you are when you have to respond to your first disaster’.
The Factory Inspectorate, originating almost two hundred years ago in the Home Office and reporting for well over a century to the Home Secretary, remained there until temporarily transferred to the Ministry of Labour under Ernest Bevin during the Second World War. The move was made permanent in 1946 and the position remained unchanged until the 1990s, when a Whitehall ‘Machinery of Government’ review led to a brief spell under the wing of the Department for Environment, Transport and the Regions (DETR). Following another review, the Health and Safety Executive returned to its more familiar ‘Employment’ home. Ministerial responsibility for health and safety at work currently rests with the Secretary of State for Work and Pensions (DWP).
Triennial Review, 2013
After the General Election of 2010, Ministers set in train a series of three yearly reviews of all public bodies to determine whether they continued to be fit for purpose and provided the taxpayer with value for money. As a ‘non-departmental public body’ (sometimes referred to as a quasi-autonomous national government body or ‘Quango’), HSE is described on its web site as ‘Britain’s national regulator for workplace health and safety. It aims to reduce work-related death, injury and ill health. It does so through research, information and advice; promoting training; new or revised regulations and codes of practice; and working with local authority partners by inspection, investigation and enforcement.’
By 2012, HSE’s net operating cost was about £175 million, supporting various regulatory activities and the employment of some 3300 staff, which included some 1300 inspectors. This was a substantial reduction from a budget exceeding £200 million supporting up to 4400 staff (including 1700 inspectors) during its heyday in the 1990s, though still significantly exceeding the resources of the majority of European health and safety regulators.
In April 2013 the DWP announced a triennial review of HSE to be led by Martin Temple, a former Director General of the Engineering Employers Federation. The review was to challenge the continuing need for HSE as a non-departmental public body, question whether its functions were still needed and, if so, whether a non-departmental public body remained the best way to provide them, and finally, to decide whether HSE met the requirements of good corporate governance. A report delivered to Ministers in January 2014 firmly endorsed the regulator’s continued existence, making it clear that the review had drawn positive conclusions to all these questions and that there was ‘near universal agreement that the Health and Safety at Work etc Act 1974 remains valid and is fit for purpose’. However it found scope for improvements in HSE’s efficiency and effectiveness and called for more to be done both by employers and HSE to combat work-related ill health. No evidence had been found to suggest that the regulator had been ‘gold-plating’ European directives. The report strongly criticised the Fee for Intervention cost recovery scheme, citing evidence from employers that that it had damaged their relationships with inspectors, and describing the scheme as a ‘dangerous model’ linking HSE’s funding to ‘fines’.
In a Parliamentary statement on behalf of the Government, the Minister of State for Work and Pensions responded to the review, saying:
‘The review has concluded that the functions performed by HSE are still required and that it should be retained as a NDPB. Mr Temple has recommended that HSE build on its well-deserved international reputation and make more progress to grow its commercial income.
I welcome these recommendations, but want to go further to introduce reforms of HSE to ensure that it delivers value for money to the taxpayer, while ensuring safety for the nation. There is considerable potential for HSE to become more commercial in outlook and in delivery – increasing the pace of the work already started within the organisation. Therefore, I have asked HSE to begin work immediately to examine commercial models for HSE in collaboration with HMT and Cabinet office, and to review the HSE Board to ensure it has the right skills to oversee future efficiencies and commercial income generating options.’
So another step, forwards or backwards, will soon be taken on the long journey started over two centuries ago. Since then the United Kingdom has achieved one of the lowest rates of fatal injuries to workers amongst leading industrial nations and has eliminated or reduced many causes of occupational ill-health. Its policies and practices have positively influenced many other countries. There is still room for improvement: 148 workers were killed in 2012-13, 111,000 non-fatal injuries were reported and an estimated 1.8 million people were suffering from an illness they believed had been caused or made worse by work. Stress or anxiety was commonly reported as a cause of absence. Some 27 million working days were lost from work related injuries and ill-health, and HSE estimated that consequential losses to the national economy were around £13.4 billion per annum. Estimates vary but there can be no disputing that several thousand people still die each year from work-related diseases such as cancer.
Judith Hackitt CBE FREng, currently chair of the HSE Board recently declared: “HSE is striving to make health and safety simpler and clearer for people to understand so that more people do what is required to manage the real risks that cause death and serious injury… we all have a part to play to ensure people come home safe at the end of the working day and good leadership, employee engagement and effective risk-management are key to achieving this.”
The likes of Leonard Horner, Alexander Redgrave and Dame Adelaide Anderson would surely have supported her sentiments.
London, April 2014
The author warmly thanks the friends and former colleagues who lent their precious time to review the text, cudgelled their memories and offered many helpful comments and suggestions: namely Jim Hammer, Tony Linehan, Jim McQuaid, Adrian Ellis, Tim Carter, Stuart Nattrass, Roger Bibbings and Sheila Pantry.
About the author
David Eves graduated with Honours in English Literature and Language at Durham University and qualified as a teacher before joining HM Factory Inspectorate in 1964. He became its Chief Inspector in 1985. As Deputy Director General of the Health and Safety Executive, he was one of its three statutory Members from 1989 until 2002, when he retired from the Civil Service.
Since then he has acted both as an independent consultant and as an associate director of Sancroft International Ltd, a consultancy specialising in corporate social responsibility. He has advised government departments in the Republic of Ireland and New South Wales, Australia on regulatory matters and at home he has assisted Defra and the Health Protection Agency with reviews and investigations. He has served as a co-opted member of the National Occupational Safety and Health Committee of the Royal Society for the Prevention of Accidents (RoSPA), the Policy Development Board of the Chartered Institute of Environmental Health (CIEH) and the Research Committee of the Institution of Occupational Safety and Health (IOSH). He has also served as Secretary General of the International Association of Labour Inspection (IALI) and Vice President of Safety Groups UK (SGUK), and is currently an ambassador for the National Examination Board for Occupational Safety and Health (NEBOSH).
David is also the author of ‘Disasters – learning the lessons for a safer world’ and co-author of ‘Questioning Performance – the director’s essential guide to health, safety and the environment’, both published by the Institution of Occupational Safety and Health (IOSH).
He was honoured to be appointed a Companion of the Order of the Bath by the Queen in 1993 and to receive an Award for Distinguished Service from the Royal Society for the Prevention of Accidents in 2000. He is an Honorary Vice President and retired Fellow of IOSH from whom he received a Lifetime Achievement Award in 2002. He is an Honorary Fellow of the International Institute of Risk and Safety Management (IIRSM) and a member of the Hazards Forum.
- Annual reports of HM Chief Inspectors of Factories, HMSO (National Archive)
- Annual reports and other publications of the Health and Safety Executive (HMSO, HSE Books)
- The early Factory Acts and their enforcement, by Ursula R. Q. Henriques published by the Historical Association, 1971
- Redgrave’s Health and Safety in Factories, second and third editions, Butterworth
- Safety and Health at Work – Report of the Committee 1970-72, HMSO
- The Flixborough Disaster: Report of the Court of Inquiry, 1975, HMSO
- Her Majesty’s Inspectors of Factories – Essays to commemorate 150 years of health and safety inspection, published by HSE, 1983
- A brief History of HM Medical Inspectorate, by Miles Kipling
- Safe Sparks: A History of HM Electrical Inspectors of Factories and Health & Safety, by N. C. Friswell (ISBN 0-9538592-2-3)
- Chief Inspector’s Instructions and Factory Department Memoranda for 1915
- The Ministry at War, Collin Crooks, 1995
- Women of Courage, HSE, 1993
- When I Grew Up, Elizabeth K. Blackburn, published by Ward Knowles Ltd
- The costs to Britain of workplace accidents and work-related ill health for 1990 (Davies & Teasdale, 1994)
- Disasters – learning the lessons for a safer world of work by David Eves, published by IOSH (ISBN 978 0 901357 46 5)
- Questioning Performance: a director’s essential guide to health, safety and the environment by David Eves and John Gummer, published by IOSH (ISBN 978 0 901357 37 3)
- A Farewell to Trains, speech by Sir Bill Callaghan, Chair of HSC, 2006
- Thirty years on and looking forward – the development and future of the health and safety system in Great Britain (HSE, 2004)
- Health & Safety in Quarries: A Hundred Years of Law, by Eric Darlow.
Appendix 1: HM Chief Inspectors of Factories 1878-2002
- Alexander Redgrave CB 1878-1891
- Frederick H Whymper 1891-1892
- R E Sprague Oram 1892-1896
- Sir Arthur Whitelegge 1896-1917
- Sir H Malcolm Robinson CB ISO 1917-1920
- R E Graves CBE 1920-1922
- Sir Gerald Bellhouse CBE 1922-1932
- Sir Duncan Wilson CBE 1932-1939
- Sir Wilfrid Garrett 1939-1946
- H E Chasteney 1946-1947
- Sir George Barnett 1947-1957
- T W McCullough CB OBE 1958-1963 I I 1960
- R K Christy CB 1963-1967
- J W C Plumbe CB 1967-1971
- B K Harvey CBE* 1971-1974
- J D G Hammer CB* 1975-1985
- D C T Eves* 1985-1988
- A J Linehan 1988-1992
- D C T Eves CB* 1992-2002
* also became Deputy Director General, Health and Safety Executive
Appendix 2: Some web sites with health and safety information