HSE needs to listen to the concerns of businesses as it carries out its review of FFI and address concerns that we are seeing different behaviour on the part of the enforcing authority.
In his independent review on the function, form and governance of the Health and Safety Executive (HSE) published in January this year, Martin Temple did not pull his punches on Fee for Intervention (FFI). In a lengthy section of his report he commented on “the impact it appears to be having on HSE’s reputation for independence and its integrity as a regulator”.
Temple’s concern was a reflection, he said, of the strength of feeling from stakeholders that FFI was damaging HSE’s reputation for acting impartially and independently. Whether Temple and the other members of the review panel anticipated the strength of feeling FFI has generated is not known.
We were and are still hearing these same concerns expressed by the members of the British Safety Council. Organisations appear not to have weakened their support for the principle underlying FFI – that is, those who are in breach should bear the cost of enforcement – but they are sensing a real change in regulatory interaction for the worse and that inspectors are under considerable pressure to bring in revenue.
The process of gathering evidence and inviting views concerning the function, form and governance of HSE was after all taking place only nine to 12 months after FFI came into force in October 2012. At that point in time, autumn 2013, FFI had hardly settled down and both dutyholders and the regulator were only slowly getting to grips with its operation.
Indeed, regulation 26 of the Health and Safety (Fees) Regulations 2012, the legislation that brought in FFI charging powers, made provision for ministers to carry out a review of the scheme before October 2015, specifically examining whether the FFI system had met its objectives.
Of the two main concerns addressed by Temple the one that has generated more heat and light is the suspicion held by stakeholders that FFI is needed by HSE “to fill the gap in its budget created by the reduction in government funding”.
Temple, while saying very clearly that he was not presented with any substantial evidence that inspectors’ behaviour had changed with the introduction of FFI, had no qualms in setting out his concern in his report to ministers: “My personal view is that the link between funding and ‘fines’ inherent in FFI does damage to the positive relationship between HSE and business, which has previously been the basis of improved health and safety performance.”
The disquiet concerning FFI does not appear to have dissipated a year down the track. While anecdote helps inform perceptions of FFI, it is no substitute for hard evidence gathered in a systematic way. But there is considerable talk of observable changes in the behaviour of inspectors. The legislation states that a contravention triggers fee for intervention.
Here is the bind. Are we now seeing a different behaviour on the part of the enforcing authority from what it was before? The reality may well be that we are now seeing a more hard-line approach by inspectors. The material breaches they are identifying are worthy of attracting FFI. But we need the evidence to either refute or substantiate the claims made in evidence submitted to Temple that revenue targets were driving enforcement priorities.
HSE had planned to undertake its own review of FFI after the scheme had been in operation for 12 months. Temple urged an opening up of that review that HSE had planned and set down a number of pre-conditions. There is talk that the planned review and report to ministers, originally planned for 2015, has been brought forward. Temple made clear in his recommendations that the review team should include independent stakeholder representation in order to assure impartiality and that the views of stakeholders must be listened to. In the British Safety Council we will do our very best to make sure your views are fed into that review.
Neal Stone is director of policy and communications at the British Safety Council
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